State v. Peterson

• Decision Date: 04 September 1902
• Court: Washington Supreme Court
• Parties: STATE ex rel. VICTOR BOOM CO. v. PETERSON.

70 P. 71

29 Wash. 571

STATE ex rel. VICTOR BOOM CO. v. PETERSON.

Supreme Court of Washington

September 4, 1902

Appeal from superior court, Chehalis county; Charles W. Hodgdon Judge.

Contempt proceedings by the state, on relation of the Victor Boom Company, against Frank E. Peterson. From a judgment against defendant, he appeals. Reversed.

John C. Hogan, for appellant.

J. C Cross, for respondent.

ANDERS J.

This is a proceeding for the punishment of the appellant, Frank E Peterson, for an alleged contempt in violating a restraining order issued by the superior court of Chehalis county in an action which was then pending in said court. It appears from the record that the Victor Boom Company, a corporation organized and existing under the laws of this state, on January 13, 1900, instituted an action in said court, against Stephen Goodwell and H. G. Ellis, to restrain them from molesting or interfering with the property and appliances of said plaintiff. The Victor Boom Company was organized in the year 1899, and seems to have complied with all the requirements of our statutes in relation to such corporations. On January 31, 1900, the court, in said action, on motion of plaintiff, ordered and adjudged as follows: 'That until the further order of the court in the premises, you, the said Stephen Goodwell and H. G. Ellis, and each of you, defendants herein, and all and singular of your agents and employés, and all others acting for you, and each or either of you, do absolutely desist and refrain from molesting or interfering with in any manner or form whatsoever the property, or any part thereof, of the said plaintiff, situate and being at and near the mouth of the Neushkah river and the waters of Gray's Harbor, contiguous thereto, in said Chehalis county, mentioned and referred to in the plaintiff's complaint as constituting the boom of the said plaintiff, the same being composed of pilling, boom sticks, and chains and appliances used in catching, sorting, booming, and rafting of saw logs at the place aforesaid; and therein fail not at your peril. This order and judgment to take effect and be in force from and after entry, the filing of a bond as hereinbefore provided, and the service of the same on the said defendants.' This order was served upon the defendants in the action, and also upon Peterson, the appellant herein. Thereafter there was filed with the clerk of the court aforesaid what was termed a 'complaint and affidavit,' entitled 'The State of Washington, at the Relation of the Victor Boom Company, a Corporation, Plaintiff, vs. Frank E. Peterson, Defendant,' in which is set forth all the records and proceedings in the original suit of the relator against Goodwell and Ellis up to and including the restraining order above quoted, and in which it is alleged, in substance, that the said Frank E. Peterson, in disregard of the said order of the court, and in violation thereof, did, on February 2, 1900, willfully, maliciously, wrongfully, and without reason or excuse therefor, cut loose and set adrift certain boom sticks and chains of the relator from its boom at the mouth of the Neushkah river and the waters of Gray's Harbor, at and near the mouth of said river, and within the plat of the relator as mentioned and set forth in the original complaint; and the said Frank E. Peterson did then and there, in violation of said order, interfere with and molest the property of the said relator while the said relator was conducting its ordinary business of booming and rafting saw logs at its boom aforesaid, by then and there cutting loose from its boom about 16 boom sticks and chains, and setting the same adrift in the waters of Gray's Harbor; the said Peterson then and there declaring that he would clear the boom of any and all sticks and chains that might be placed in said boom by the relator, and that he would disregard the said order of the court. The complainant prayed for the issuance of a citation to the said Peterson for his appearance before the court. This complaint and affidavit was sworn to by G. M. Powell, secretary and treasurer of relator, before the clerk of said superior court, and upon presentation thereof the court, on February 6, 1900, issued a warrant of arrest against the defendant Peterson, returnable forthwith, requiring the said defendant to answer the allegations of contempt in said affidavit contained, and that the defendant be held, when arrested under such writ, without bail. The court at the same time ordered that a copy of the affidavit then on file in the cause be served upon the defendant with the writ of attachment. The defendant was accordingly arrested, and brought into court, and thereupon, by his counsel, moved to quash the warrant and dismiss the proceeding upon the grounds: First, that no affidavit, as required by statute as a basis for the proceeding, was ever made or filed; second, that the warrant was null and void in failing to specify a return day; and, third, that the order directing the issuance of the warrant was void in denying the defendant the right to be admitted to bail. This motion was heard and denied on the 6th day of February, and the defendant was required to plead to the complaint and affidavit on February 10, 1900, at the hour of 10 o'clock a. m., bail being fixed at $200, to be given by himself for his appearance at said date. On the day last mentioned the defendant appeared and demurred to the complaint made the basis of the proceeding upon the grounds, among others, that no affidavit as required by law was ever made or filed as a basis for the issuance of the warrant for the arrest of the defendant; that the complaint did not state facts sufficient to constitute a cause of action against the defendant, or grounds for the punishment of the defendant for contempt of court; and that the court had not acquired jurisdiction in the premises. The demurrer was overruled, and, the defendant having answered, the case proceeded to trial before the court. The defendant was found guilty, and was adjudged to pay a fine and costs, and to stand committed until such fine should be paid. From this judgment the defendant has appealed.

It is alleged by the appellant that the court erred: (1) In denying his motion to quash the proceedings and discharge the defendant on the ground that no affidavit as required by statute was made or filed as a basis for the proceeding, and that the court was without jurisdiction in the proceeding (2) in ordering the arrest of the defendant without bail, and in denying the appellant's motion to quash the warrant on that ground; (3) in making the warrant of arrest returnable forthwith, and not upon a day certain, and denying the motion to quash the warrant for that reason; (4) in overruling the appellant's demurrer to the complaint on the ground that it did not state facts sufficient to constitute a contempt; and (5) in denying appellant's motion for a nonsuit. It is claimed by counsel for the appellant that no affidavit whatever was filed by or on behalf of the relator as a basis for this proceeding. This contention is predicated upon the assumption that the paper writing which the learned trial court treated as an affidavit was merely an ordinary complaint, and, though sworn to, was neither in form nor substance an affidavit. It was in the form of a complaint in an ordinary civil action, and was subscribed by the attorney for the relator as complaints ordinarily are in our practice; but it does not necessarily follow from those facts that it might not have been properly treated as an affidavit. It has been said that an affidavit is a declaration on oath, in writing, sworn to by the affiant before some person who has authority to administer oaths. Harris v. Lester, 80 Ill. 307; 2 Cycl. Law & Proc. p. 4. An affidavit is not a pleading, and cannot be made to take the place of a pleading required by law. For instance, an affidavit cannot be made to serve the purpose of a plea in abatement or in bar. Kellogg v. Sutherland, 38 Ind. 154. On the...