Warner v. Martin

• Decision Date: 20 November 1905
• Citation: 52 S.E. 446,124 Ga. 387
• Parties: WARNER et al. v. MARTIN.
• Court: Georgia Supreme Court

52 S.E. 446

124 Ga. 387

WARNER et al. v. MARTIN.

Supreme Court of Georgia

November 20, 1905

Syllabus by the Court.

On the hearing before a judge in a proceeding for contempt for the violation of a restraining order granted on application for injunction, affidavits are admissible in evidence to prove the fact of violation.

The judgment rendered on such a hearing will not be disturbed by the Supreme Court, unless the judge has grossly abused the sound discretion vested in him in such cases.

Where in such a case, irrelevant evidence was admitted over the objection of the person on trial, such error is not cause for reversing a judgment against him, when it appears that his case was not thereby injuriously affected, and where the evidence as to the admissibility of which there could be no doubt warranted the judgment.

A judge of the superior court has no power to impose a fine of more than $200 for contempt in violating a temporary restraining order, where the violation was treated by the judge as a single act.

The costs in a proceeding for contempt constitute no part of the fine imposed, and may be awarded against the contemner in addition to a fine of $200.

Error from Superior Court, Hall County; J. J. Kimsley, Judge.

Action by Harrison T. Martin against A. J. Warner and others. A temporary restraining order was issued, and a rule nisi against the defendants for an alleged violation thereof. From a judgment holding defendants in contempt and imposing a fine, defendants bring error. Affirmed, with directions.

H. H Dean, for plaintiffs in error.

H. H Perry, G. H. Prior, Saml. C. Dunlap, Howard Thompson, and F M. Johnson, for defendant in error.

FISH, C.J. (after stating the foregoing facts).

One of the assignments of error is that the court erred in admitting in evidence affidavits offered by petitioner against defendants, over the objection that the proceeding was quasi criminal, and only oral testimony was admissible. In Welch v. Barber, 52 Conn. 147, 52 Am.Rep. 567, it was said: "A civil contempt is one in which the conduct constituting the contempt is directed against some civil right of the opposing party, as where an injunction is disregarded, or some act required by the court for the benefit of the other party should be neglected. In cases of contempt of this sort the proceeding for its punishment is at the instance of the party interested, and is civil in its character." In such cases the general rule seems to be that the question of contempt or no contempt may be decided upon affidavits, where the chancery rule is in force that the answer of the contemner is not conclusive. Rapalje on Contempts, § § 120, 126. "In proceedings for contempt for the violation of an injunction, the usual method of proving the fact of violation is by affidavit." 2 High on Inj. § 1452. See, also, 1 Beach on Inj. § 262; State v. Harper's Ferry Bridge Co., 16 W.Va. 864; Una v. Dodd, 38 N.J.Eq. 460; Witter v. Lyon, 34 Wis. 564; People v. Brower, 4 Paige (N. Y.) 405; State v. Mitchell, 3 S. D. 223, 52 N.W. 1052; Rutherford v. Metcalf, 5 Hayw. (Tenn.) 58. So far as we know to the contrary, it has been the practice in the courts of this state to admit affidavits in evidence on the hearing of proceedings for contempt for the violation of an injunction. Among the cases where such practice was followed may be cited Howard v. Durand, 36 Ga. 346, 91 Am.Dec. 767; Thweatt v. Gammell, 56 Ga. 98; Hayden v. Phinizy, 67 Ga. 758. The same practice has been followed in proceedings for contempt in not paying over money, etc., to a receiver. Ryan v. Kingsbery, 88 Ga. 361, 14 S.E. 596. So far as we are advised, the question as to the admissibility of affidavits on the hearing in such proceedings has never been heretofore made in our courts. We are of opinion, however, from what we have said above, that affidavits are admissible in such a case, and that the court did not err in so ruling. We do not hold, however, that the judge could not in his discretion require witnesses to testify orally.

2. The evidence was to the effect that the defendants, after the restraining order was served upon them, continued the work of constructing the dam. One of the defendants testified "We continued to make the excavation after the papers were served. After the excavation was made we began to put in timber and rock for the dam and bolted them down to the bed. That was part of the work of constructing the dam." There was evidence for the petitioner that logs were placed in the main dam, within the coffer-dam, and bolted or chained down, and that such logs were above the water. The contention of the defendants was that as the language of the order restraining them "from erecting the obstructions in or across the Chattahoochee river, as complained of in this petition," laying a foundation of the dam, in an excavation which was within the coffer-dam, and at a place where the river was not then running, but from which defendants had diverted it before the original petition was filed, was not an obstruction in or across the river, especially if, as they contended, such foundation was not built above the bed of the river. A restraining order has all the force of an injunction until vacated or modified, and a defendant is bound to obey it at his peril. He cannot set up his opinion as to its meaning as against the...