Thomas v. Woollen, 769S160

• Decision Date: 01 February 1971
• Docket Number: No. 769S160,769S160
• Citation: 266 N.E.2d 20,255 Ind. 612
• Parties: James G. THOMAS and Dale E. Thomas, Appellants, v. Lydia J. WOOLLEN, Evans Woollen III, and James Woollen, Appellees.
• Court: Indiana Supreme Court

Page 20

266 N.E.2d 20

255 Ind. 612

James G. THOMAS and Dale E. Thomas, Appellants, v. Lydia J. WOOLLEN, Evans Woollen III, and James Woollen, Appellees.

No. 769S160.

Supreme Court of Indiana.

Feb. 1, 1971.

Rehearing Denied March 15, 1971.

Ferdinard Samper, Indianapolis, for appellants.

Daniel E. Johnson, Michael R. Maine, Indianapolis, for appellees; Baker & Daniels, Indianapolis, of counsel.

PRENTICE, Judge.

This is an appeal from a judgment of contempt of the Superior Court of Marion County, Room No. 5, entered against the appellants, hereinafter referred to as defendants, upon the complaint of the appellees, hereinafter referred to as plaintiffs. The contempt consisted of a violation of the Court's order of March 11, 1968, requiring the defendants to close a driveway located in violation of sub-division restricted covenants and 'to take all reasonable measures in the future as occasion arises' in order to prevent its use.

The contempt judgment, entered March 24, 1969, awarded plaintiffs damages in the sum of $1,000.00, attorneys' fees in the sum of $2,000.00, and costs. The court ordered further affirmative action by defendants within a prescribed period. This judgment further provided that, in the event such action not be completed within such period, the defendants pay an additional sum of $300.00 damages and the sheriff incarcerate the defendant James G. Thomas and confine him until he has complied.

Defendants assign as error the overruling of a motion for a new trial, which was upon the following grounds:

1. The decision is not sustained by sufficient evidence.

2. The decision is contrary to law.

3. The decision is not sustained by sufficient evidence and is contrary to law.

4. The Court assessed excessive damages.

After this appeal was fully briefed, defendants filed an application for writ of certiorari seeking to bring into the record the transcript of additional proceedings which, according to the application, would disclose that upon their petition (filed subsequent to this appeal) the trial court dissolved the March 11, 1968, order.

Directing our attention first to the defendants' application for certiorari, such application should be denied. The issue on this point is whether or not the writ, if granted, would bring anything into this record which would be germane to the issues and we think it would not. We are not here concerned with the ultimate disposition by the trial court of the dispute between the parties, but rather with whether or not the judgment and order of March 11, 1968, were lawful at the time of rendition, whether or not the trial court was warranted in its finding of contempt, and, if so, whether or not its order of March 24, 1969, was lawful.

An injunction while it is in force must be obeyed in order to preserve respect for the obedience to the mandates of the court. Any other approach would be intolerable. There may be circumstances under which a party would be warranted in disobeying a court order, such as impossibility of performance. We need not here concern ourselves with such questions, however, as the proceedings under which the initial order was dissolved, as reflected by plaintiffs' petition, only terminated the initial order and did not render it void from the beginning.

Proceeding to a consideration of defendants' motion for a new trial, we think their position that the decision is not sustained by sufficient evidence is untenable. It is true that the initial order directed defendants to de specific acts in an attempt to effectively close the driveway, and it is apparent that defendants did these acts. The order did not end there however, and further directed defendants 'to take all reasonable measures in the future as occasion arises' to effectively close the driveway. We think that the burden was upon the defendants, under the rule to show cause, to demonstrate to the court that all reasonable steps under the circumstances had been taken. Defendants have not sustained this burden.

Defendants next contend that the decision is contrary to law in that the awards of $1,000.00 damages and $2,000.00 attorneys' fees were excessive in the light of the evidence. Defendants do not challenge the court's right to assess damages and attorneys' fees, which right appears to be firmly established under Burns' Ann.Stat. § 3--2115 (1968 Repl.), (Acts 1881 (Spec.Sess.), ch. 38, § 191, p. 240), and Trotcky v. Van Sickle (1949), 227 Ind. 441, 85 N.E.2d 638. It was said in Denny v. State (1932), 203 Ind. 682, 182 N.E. 313, that 'The power of a court of chancery to enforce its order by attachment or otherwise, according to the exigency of the case has been preserved to our circuit courts under the so-called power to punish for civil contempt, which is properly not a power to punish but one to coerce by imprisonment or to impose money penalities for the benefit of the injured party, or to take all necessary measures to secure and indemnify the plaintiff against damages in the...