Wilcox v. State

• Decision Date: 19 November 1895
• Citation: 46 Neb. 402,64 N.W. 1072
• Parties: WILCOX ET AL. v. STATE.
• Court: Nebraska Supreme Court

46 Neb. 402

64 N.W. 1072

WILCOX ET AL.

v.STATE.

Supreme Court of Nebraska.

Nov. 19, 1895.

Syllabus by the Court.

1. A witness in attendance upon a court who, on being ordered to be sworn or affirmed, contumaciously refuses, is guilty of a contempt of court, and is punishable therefor.

2. But it is not a contempt of court for a witness to decline merely to be sworn, but he must also refuse to be affirmed, and the record must so disclose.

3. A witness who contumaciously refuses to answer any legal and proper question asked him is guilty of a contempt.

4. When a witness is committed for contempt for refusing to testify, the questions asked and refused to be answered must be stated in the order of commitment.

Error to district court, Douglas county; Blair, Judge.

Jeremiah C. Wilcox and Sherman Wilcox were found guilty of contempt, and bring error. Reversed.D. Van Etten and J. C. Wilcox, for plaintiffs in error.

A. S. Churchill, Atty. Gen., for the State.

NORVAL, C. J.

These proceedings were instituted in this court to review certain orders made by the court below by which Jeremiah C. Wilcox and Sherman Wilcox were adjudged to be in contempt of court. It appears from the record that on the 6th day of June, 1894, one Harry Carton recovered a judgment in the district court of Douglas county against the plaintiff in error Jeremiah C. Wilcox in the sum of $1,237.13, besides costs of suit. An execution was issued upon this judgment on the 25th day of June, 1894, which upon the same day was returned by the sheriff unsatisfied for want of goods and chattels or lands and tenements of the defendant in the county upon which to levy the writ. Thereupon proceedings in aid of execution were instituted before Judge Blair, one of the judges of the district court in and for Douglas county, under the provisions of section 532 et seq. of the Code of Civil Procedure, by the filing of the affidavit of one L. F. Crofoot, setting up the recovery of the aforesaid judgment, the issuing of the execution thereon, and the return thereof unsatisfied; that the judgment debtor is interested as a stockholder in certain specified corporations, which interests, together with other property, both real and personal, of which he is possessed, he refuses to disclose or apply towards the satisfaction of said judgment; and that Sherman Wilcox is in possession of the facts with reference to Jeremiah C. Wilcox's ownership of the stock in said corporations, and is a material witness in the proceedings. The district judge made an order commanding the said Jeremiah C. Wilcox and Sherman Wilcox to appear before him at a time and place stated therein, to answer under oath all questions concerning the interests of Jeremiah C. Wilcox in said corporations, or concerning his other property, as may be propounded to them; and, further, that they bring with them the original subscriptions for stock and the stock books of each of said corporations. This order was personally served upon each of the Wilcoxes, and, Sherman Wilcox having failed to appear at the time fixed for his appearance, a capias was issued to the sheriff, commanding him to arrest and bring the said Sherman before the district judge for examination, which writ was accordingly executed. The record shows the following proceedings were had and taken: “Whereupon the said Sherman Wilcox, now being before the court, refused to be sworn, and refused to testify. Thereupon the said Sherman Wilcox was adjudged to be in contempt of court,” and was committed to the county jail until he should signify his willingness to obey the order of the...