Anderson v. Williard, 11 N.C. App. 70

11 N.C. App. 70 | N.C. Ct. App. | 1971

BROCK, Judge.

Our statute provides that “[e]very court of record has power to punish as for contempt when the act complained of was such as tended to defeat, impair, impede, or prejudice the rights or remedies of a party to an action then pending in court . . and that such power shall extend to all cases . . where attachments and proceedings as for contempt have been heretofore adopted and practiced in courts of record in this State to enforce the civil remedies or protect the rights of any party to an action.” G.S. 5-8. “This principle is applied in numerous decisions. It has been held, for example, that a person who presents to the court a fraudulent claim for the payment of money, or willfully interposes a false answer, or decoys a witness or dissuades him from attending the trial, or insults, on account of an adverse verdict, a juror who has been discharged, or willfully does any other act which tends to defeat the rights of any party to a pending action may be punished as for contempt, [citations].” Snow v. Hawkes, 183 N.C. 365, 111 S.E. 621.

We are inclined to agree with defendant that his acts in mailing the Blue-White Club letter cannot fairly be considered as intimidating or dissuading witnesses from appearing for trial. Also we are inclined to agree with defendant that his mailing of the 125 picture cards with his message thereon cannot fairly be considered as intimidating or dissuading witnesses or the plaintiffs. Nor do we consider the message on the picture card as a coloring of the facts so as to bring the court or Judge Crissman into ridicule. Obviously contemnor’s acts with respect to both the Blue-White letter and the picture card were brought on because he was disgruntled with having been stopped from doing what he wanted to do. Both acts seem to us to be rather intemperate responses to an order denying him the right to use his property as he pleased, and their prime tendency seems to be to bring on disrespect for the author, not the court.

The verbal threats to plaintiffs and other witnesses are, however, quite another matter. It is obvious that those threats were designed to intimidate plaintiffs and their witnesses and to dissuade them from testifying in the case or otherwise pursuing the enforcement of the restrictive covenants. Such conduct is punishable as for contempt.

Defendant contends that the testimony concerning the threats was incompetent and should not be considered because neither the petition for the order to show cause, nor the order to show cause, advised defendant that he would be required to answer as to the threats. It is true that only the mailing of the publications was mentioned in the petition or the order, however the hearing at which the testimony of the threats was given was held on 16 February 1970. Thereafter defendant was on notice of the charge of the threats, but he voluntarily offered no further evidence concerning them. On 22 June 1970 he appeared before Judge Collier and announced that he had no further evidence or argument to present and that he was ready for judgment to be entered. We hold that defendant was on notice from 16 February 1970 until 22 June 1970 that he was charged with contempt for having threatened the plaintiffs and several witnesses, and that this was sufficient notice, cf. Erwin Mills v. Textile Workers’ Union, 235 N.C. 107, 68 S.E. 2d 813.

The order appealed from does not have numbered paragraphs and is not broken into findings of fact and conclusions of law. Nevertheless from looking at a copy of the original of the order appealed from its appears that there are five unnumbered paragraphs. The order appealed from is modified as follows: By striking from the fourth paragraph of the order the last sentence appearing in said paragraph reading as follows: “The court further finds that said defendant failed to publish the full facts in the cause, but colored said facts so as to bring into contempt and ridicule the court, and especially Judge Walter E. Crissman, who granted the temporary injunction.” The order is further modified by striking from the next to the last sentence of the fourth paragraph all of the said next to the last sentence appearing after that part reading as follows: “The court further finds that said acts and conduct on the part of the said defendant were made for the purpose and with the intent, and that the same had a tendency, of embarrassing and intimidating witnesses and prospective witnesses in said lawsuit.”

Judge Collier found in the fourth paragraph of his order as follows: “. . . that said defendant also made threats to the plaintiffs and to some of the neighbors that, if the suit were prosecuted, he would sell to an undesirable person or would build a brick wall 20 feet high along his property line which abuts the east property line of the plaintiffs.” This finding is amply supported by the evidence and in turn supports the entry finding G. Jay Williard guilty as for contempt.

The order appealed from is modified as above set out and as so modified is affirmed.

Modified and affirmed.

Judges Morris and Vaughn concur.