State v. Nathans

• Citation: 27 S.E. 52,49 S.C. 199
• Parties: STATE v. NATHANS et al.
• Decision Date: 19 April 1897
• Court: United States State Supreme Court of South Carolina

27 S.E. 52

49 S.C. 199

STATE v. NATHANS et al.

Supreme Court of South Carolina

April 19, 1897

Appeal from circuit court, Charleston county; W. C. Benet, Judge.

Proceedings for contempt against J. N. Nathans, James Simons, Julian Mitchell, Henry A. M. Smith, Huger Sinkler, John H. Doscher A. F. C. Cramer, and E. H. Sparkman for violating and disregarding an order of injunction entered in the action of Theodore Wenzel and another against the Palmetto Brewing Company and others. From an order adjudging the defendants in contempt and imposing sentence therefor, they appeal. Reversed.

Lord & Burke, Edward McCrady, J. P. K. Bryan, W. C. Miller, Huger Sinkler, James Simons, and Mitchell & Smith, for appellants.

Wm. A Barber, Atty. Gen., for the State.

JONES J.

This is an appeal from an order of Benet, circuit judge, adjudging the defendants guilty of contempt, and imposing sentence therefor, upon a rule to show cause issued in the case of Theodore Wenzel et al. against the Palmetto Brewing Company et al. The alleged contempt was disobedience of an order--made in said case--appointing a receiver, and enjoining creditors and stockholders of the Palmetto Brewing Company from prosecuting any action against the said company except in said cause. On appeal taken from this order, this court reversed the same on the ground that the complaint in the cause did not state facts sufficient to justify a court of equity in displacing corporate control of the company's property at the suit of a stockholder. See Wenzel v. Brewing Co., 48 S.C. 80, 26 S.E. 1. A preliminary question was argued, whether the reversal of that order, out of which the contempt proceedings grew, would operate to annul the contempt proceedings. We hold that the order of injunction by Judge Benet was not void, but was merely erroneous and voidable.

"The weight of adjudged cases sustains the proposition that the judgment of a domestic court of general jurisdiction is not void except where the court has no jurisdiction over the subject-matter of the suit, or where, having such jurisdiction over the subject-matter, it is shown by the record to have no jurisdiction over the judgment defendant." Freem. Judgm. § 116; Turner v Malone, 24 S.C. 398. The circuit court had undoubted jurisdiction over the defendant in the case of Wenzel et al. against the Palmetto Brewing Company et al. (except the De La Vergne Refrigerating Machine Company); and it had undoubted jurisdiction over the subject-matter of the suit, the property and business of the Palmetto Brewing Company, and the rights of stockholders and creditors with respect thereto, with power to appoint a receiver for an insolvent corporation of this state, and to restrain suits against said corporation; and this, too, on the suit of a minority stockholder. The complaint failed in not stating facts sufficient to justify the court in interfering with the corporate management. It was as if, in a suit to foreclose a mortgage of realty, the complaint had failed to allege the execution of the mortgage. On demurrer on the ground that the complaint did not state a cause of action, the complaint would be held insufficient, but it by no means could be said that for that reason the court had no jurisdiction of the subject-matter of the suit. A court may have jurisdiction of the subject-matter of a suit, and yet commit reversible error in maintaining or retaining jurisdiction of the suit. The subject-matter of a suit is one thing, and the suit thereon is another. The correct rule is stated in Rapalje thus:

The disobedience of any order, judgment, or decree of a court having jurisdiction to issue it is a contempt of that court, however erroneous or improvident the issuing of it may have been. Such order is obligatory until reversed by an appellate court, or until corrected or discharged by the court which made it. But if, in making such order, the court was without jurisdiction, disobedience of it is not a contempt." This is the law in this state. Carr v. Scott, Riley, 26, *193; James v. Smith, 2 S. C. 188; In re Stokes, 5 S. C. 71; Watson v. Bank, Id. 159. The determination of the question presented involves a consideration of the nature of proceedings in contempt.

In 4 Enc. Pl. & Prac. 766, it is stated: "While contempt of court, in its essential character, is divided into various kinds, such as direct and constructive, civil and criminal still, in every species of contempt, whatever may be the ultimate object of the redress sought in any individual case (i. e. private compensation or public vindication), there is necessarily inherent an element of offense against the majesty of the law, savoring more or less of criminality. And hence the almost universal doctrine, as laid down by the courts, is that process by which the party charged is reached and tried--be the adjudication wholly punitive, wholly remedial, or partaking of both qualities--is essentially criminal, or quasi criminal." Mr. Bishop, in his work on Criminal Law (6th Ed., volume 2, p. 149), in the chapter on "Contempt of Court," says: "The offense of contempt of court is against the state, not the judge or the party in the cause. Therefore the proceeding should properly be entitled as of the state against the one in contempt." Mr. Justice Story, in Ex parte Kearney, 7 Wheat. 38, said: "When a court commits a party for a contempt, their adjudication is a conviction, and their commitment is execution." In this case the supreme court held that it could not revise the judgment of the circuit court adjudging the party guilty of contempt, because it had no appellate jurisdiction in criminal cases. In New Orleans v. Steamship Co., 20 Wall. 392, Mr. Justice Swayne, delivering the opinion of the court, said: "Contempt of court is a specific criminal offense. The imposition of the fine was a judgment in a criminal case. That part of the decree is as distinct from the residue as if it were a judgment upon an indictment for perjury committed in a deposition read at the hearing." The practice in this state has not been uniform. Sometimes the proceedings are in the name of the state against the offender; sometimes bearing the title of the cause out of which the proceedings arose; sometimes entitled as in this case. If we may be here permitted to suggest a logical practice, we would say, where the object is punishment alone, the proceedings should be in the name of the state; where the object is to compel performance of an act as a remedy for a party, the proceedings should bear the title of the cause in which relief is sought; and, where punishment for the public offense and a remedy for a private suitor are both sought in the same proceeding, the title may be as in this case. But form is not essential. Whatever the form of the proceedings, unless used as a mere remedy to compel the performance of an act to which a suitor is entitled, the proceedings are criminal. Such a proceeding is a special criminal proceeding, summary in its nature, and distinct from the cause in which it may arise. This court entertains appeals from a judgment or order in contempt proceedings not only because such order is a final order in a special proceeding, in the sense of sections 3. 11, subd. 3, of the Code (Emory v. Davis, 4 S. C. 36), but because of its appellate jurisdiction in criminal cases. In the case of Ex parte Thurmond, 1 Bailey, 605, Judge O'Neall, said, speaking of an attachment for contempt: "When the attachment has issued, what is its nature and effect? Is it a civil or a criminal process? In some cases I think it is a civil process, as where it issues to compel a party to a suit to pay an award or decree of a court of equity, or against a security for the costs of a suit, and the like. In these cases its object is exclusively the payment of money, and it is in lieu of an execution. Cowp. 136; 1 Term. R. 265; 4 Term R. 316, 809; 7 Term R. 156; 1 Bos. & P. 336; Blake v. Lowe, 3 Desaus. 269; Daniel v. Capers, 4 McCord, 237. In other cases, where it issues against a sheriff for malpractice, such as refusing, in the presence of the court, to carry its orders into effect, receiving a bribe, or oppressive conduct in the discharge of his duties, it is certainly a criminal process. In cases of neglect of duty, such a failing to collect, or pay over money when collected, under execution, it is partly a criminal and partly a civil process. It is criminal both in form and effect, so far as it is designed to punish the sheriff for his neglect; but so far as its effect is to redress the injury of the party who procures it to be issued, by compelling the sheriff to place him in as good a situation as he would have been in had the sheriff done his duty, it is generally a civil process. State v. Sheriff of Charleston Dist., 1 Mill, 151; Daniel v. Capers, 4 McCord, 237." In the 16th volume of the Central Law Journal, Mr. A. J. Donner, writing on the subject of contempts by officers of the court, speaks of this case of Ex parte Thurmond as an interesting decision, and of importance as presenting an example of the union of civil and criminal remedies in contempt proceedings. This writer says: "Usually, if the contempt consists in the refusal of a party to do something he is ordered to do for the benefit or advantage of the opposite party, the process is civil, and he stands committed until he complies with the order. The order in such cases is not punitive, but coercive. The private party alone is interested in its enforcement, and when he is satisfied the imprisonment terminates." In the case of Wyatt v. People (Colo. Sup.) 28 P. 962, the distinction is forcefully drawn. So, also, in State v. Knight (S. D.) 54 N.W. 412, the court said: "If the contempt consists in the refusal of a party to do something which he is...