York v. State

• Decision Date: 25 January 1909
• Citation: 115 S.W. 948,89 Ark. 72
• Parties: YORK v. STATE
• Court: Arkansas Supreme Court

115 S.W. 948

89 Ark. 72

YORK v. STATE

Supreme Court of Arkansas

January 25, 1909

Original petition for certiorari to Jefferson Chancery Court John M. Elliott, Chancellor; judgments quashed.

Judgments quashed.

Bridges Wooldridge & Gantt, S. M. Taylor and Rose, Hemingway, Cantrell & Loughborough, for appellants.

1. As there is no right of appeal from a judgment for contempt, this court will quash such judgments for error, as well as for excess, of power and for irregularities in proceedings. 22 Ark. 151; 73 Ark. 538, 366.

2. The judgments were void, there having been filed no affidavit or its equivalent. This is required in all cases of constructive contempt. 1 Tidd, Pr. 479; 4 Blackst. Com. 286-7; 1 Brews. 218; Rapalje on Contempt, § 93; 62 F. 827; 81 P. 409; 82 Id. 853; 17 Cal. 261-2; 28 P. 964; 1 Del.Ch. 25; 52 Conn. 147; 2 Blatch. 76; 57 Ill.App. 577; 36 Ind. 196, 213; 65 Id. 504; 28 P. 178; 26 Id. 937; 27 Id. 1004; 28 Id. 1076; 92 Ky. 449; 17 S.W. 435; 2 Bland, Ch. [Md.], 461, 486, 114 Mass. 230-9; 74 N.E. 677-9; 82 P. 450; 45 N.W. 116; 62 Id. 832; 67 Id. 796; 14 N.W. 143; 74 Id. 1098; 54 Id. 415; 2 Utah 560, 594; 45 P. 644; 65 Id. 759; 1 Wyo. 155.

W. F. Kirby, Attorney General, and Dan'l Taylor, Assistant, for appellee.

1. Courts have power and the right to cite for contempt and punish wrongdoers of their own motion. 44 L.R.A. 159; 24 W.Va. 416; 81 Mich. 592.

2. No formal pleadings are necessary, and defects in process are unavailable as a defense, if defendants are in court and informed of the charge to be answered. 2 High, Inj. Par. 1416.

3. Injunction not void because it was issued without notice. Kirby's Digest, § 3973.

4. Mere errors or irregularities do not render an injunction void, only voidable on motion or by direct proceedings. The violation of an injunction based on irregular proceedings renders the defendant liable for contempt. 32 P. 924; 51 Kan. 241: 113 Cal. 382; 7 Wyo. 464; 35 Kan. 616; 51 Id. 241; 20 L.R.A. 446; 35 N.J.Eq. 422; 9 N.Y. 263; 62 N.W. 1096; 44 Neb. 739; 45 P. 323; 53 Id. 299; 12 Id. 42; 32 Id. 924; 73 N.W. 788, 82; 98 Wis. 143; 7 N.D. 155; 12 N.E. 136; 2 High on Injunctions, Par. 1416; 6 S.E. 396; 34 A. 56.

OPINION

BATTLE, J.

J. B. York and Robert York present separate petitions for writs of certiorari to this court, asking it to quash judgments of the Jefferson Chancery Court fining J. B. York ten thousand dollars and Robert York five thousand dollars for a violation of an order of injunction issued by that court in a suit wherein John F. Rutherford and M. F. Rutherford were plaintiffs, and the Bluff City Lumber Company, J. B. York, Robert York, C. L. Browning, and C. J. Samstag were defendants.

About the 24th day of August, 1907, John F. Rutherford and M. F. Rutherford, his wife, instituted the above-mentioned suit, alleging that the Bluff City Lumber Company was a corporation; that the defendant Samstag owned two shares of its stock, C. L. Browning two shares, J. B. York and Robert York 1078 shares, and plaintiffs 920 shares, the remainder; that J. B. York was president of the company, and Robert York was treasurer and manager. Plaintiffs further allege various acts of mismanagement and misconduct on the part of the Yorks, causing a loss in two years of not less than $ 200,000 and a loss to the plaintiffs and a profit to themselves and to corporations in which they were interested and controlled; and that they had failed to make a distribution of the net profits of the company according to its by-laws; and asked, among other things, that a receiver "be appointed to take charge of and wind up the affairs of the company, and that on a final hearing a judgment be rendered against the Yorks and in favor of the company for such sums as the account of a master may show to be due by them to it."

The defendants answered the allegations of plaintiffs. In pursuance of the prayer of plaintiffs, J. B. York and John F. Rutherford were appointed receivers, and as such took charge and control of the property of the company.

On the second day of January, 1908, the plaintiffs presented an application to the chancellor of the Jefferson Chancery Court, in which they alleged "that on the 2d day of January, 1908, about 5. P. M. they were served [with] a notice, signed by J. B. York, * * * that there would be a meeting of the stockholders of said company * * * held at the office of Rose, Hemingway, Cantrell & Loughborough, in the city of Little Rock, Pulaski County, Arkansas, on the following morning at 10 A. M., the purpose of said meeting not being stated in said notice, except that it should be for the transaction of any business that may be presented to the stockholders for consideration;" "that a like notice was, at the same time, served upon plaintiffs for a meeting of the directors of said company to be held at the same time and place;" that they are advised that the purpose of said meeting was to take some action hurtful to their interest and said corporation, with the object of hampering and interfering with the court in the administration of its affairs; and asked that the chancellor make an order "restraining said J. B. York, Robert York, C. J. Samstag and C. L. Browning, or any person or persons attempting to vote stock as a stockholder or as proxy for a stockholder of the Bluff City Lumber Company, and all directors, from holding or attempting to hold any meeting and from attending any meeting to be held in pursuance of the notices aforesaid, or either of them, and any other meeting of the stockholders or directors of the said corporation, until the further orders of this court."

Upon this application an order was made in accordance with the prayer thereof, and was served upon the Yorks on the morning of January 3, 1908. And on January 6, 1908, at 11 o'clock, the following citation was served upon each of the Yorks: "You are commanded to appear before the Jefferson Chancery Court at the courthouse in Pine Bluff, Arkansas, on Monday, January 6, 1908, at two o'clock, P. M. there to show cause why you should not be punished for contempt for refusing to obey an injunction against you issued by this court, dated January 2, 1908."

[Signed] "John M. Elliott,

"Judge of the Jefferson Chancery Court."

No affidavit, information, or statement of facts was presented to the court as a foundation for the issuance of the citations or proceedings for contempt. At two o'clock P. M. on the sixth day of January, 1908, J. B. and Robert York appeared before the court to answer the citations served on them, and asked for time to file a written response and to prepare their defense, and the court denied the time and proceeded to take testimony as to the contempt charged, and after hearing the evidence found both of the defendants guilty, and assessed the punishment of J. B. York at a fine of ten thousand dollars and of Robert York at a fine of five thousand dollars, and rendered judgments accordingly. To quash these judgments the petitions for the writ of certiorari are presented to this court.

In Beene v. State, 22 Ark. 149, Chief Justice ENGLISH, after saying that it was held by this court "that an appeal could not be taken from, nor a writ of error prosecuted to, a judgment of the circuit court for contempt," said:...