53 W. Va. 65 | W. Va. | 1903
On a judgment in the circuit court of Greenbrier County, C. M. Harwood sued out an execution against J. A. August, Jr., returnable to July rules, 1901, which was levied by the sheriff on a horse. J. A. August, Sr., set up a claim of title to the horse, and thereupon the sheriff demanded from the plaintiff an indemnifying bond, which was given, and then, on the 25th day of June, 1901, said claimant executed and delivered to the sheriff a suspending bond. Two days later, June 27, 1901, the sheriff sold and delivered the horse to Henry Gilmer for one hundred
Gilmer complains of said judgment, urging that the claimants remedy was an action of detinue for the recovery of the horse or a suit against the sheriff, and that the proceeding amounts to a taking of his property without due process of law. As the order made shows that the court acted only upon the notice, the execution and the return thereof, the indemnifying bond and suspending bond, it is true that the judgment does not stand upon formal pleadings between the parties to the notice, hut whether the order made in the proceeding requiring the sheriff to retake the horse from Gilmer, the purchaser, amounts to depriving Gilmer of his property without due process of law, depends upon the construction Avhich the courts have put upon that clause of the constitution which prohibits it. This necessitates an inquiry concerning, first, the construction of said constitutional guaranty, and second, the jurisdiction of courts and their modes of procedure.
The constitutional guaranty referred to was not intended to either establish or perpetuate any particular form of action or mode of procedure. All that it requires is that the substantial rights of notice and hearing before judgment be preserved. 10 Am. & Eng. Ency Law, (2d ed.) 301. In Railroad Co. v. Iowa, 160 U. S. 389, Mr. Justice White said: “The Eourteenth Amendment to the Constitution in no way undertakes to control the power of a State to determine by what process legal rights may be asserted ox legal obligations be enforced, provided the
“When property is lawfully taken by virtue of legal process, it is in the custody of the law.” Bouv. Law Dic., title Custodia Legis. In Taylor v. Carryl, 20 How. (U. S.) 583, 594, Mr. Justice Campbell, speaking of the English Courts, said: “Those courts take efficient measures to maintain their control over property within their custody, and support their officers in defending it with firmness and constancy. The court of chancery does not allow the possession of its receiver, sequestrator, committee, or eustodee, to be disturbed by a party, whether claiming by title paramount or under the right which they were appointed
These principles have direct application to this ease, although their enunciation by the courts arose from causes presenting facts and conditions somewhat different from those of the present case. They put it beyond question that property levied upon by execution is in custodia legis, in the custody of the law, through and by the court, holding by the hand of its executive, officer, acting under the process of the court. The possession of the court is good against all individuals and all other courts and their officers, and the court must necessarily have the power to vindicate and uphold its right of possession. Otherwise, its jurisdiction would fail and it would be powerless to 'perform its functions under the law. In the first place, tire forcible and wrongful dispossession of the officer in whose custody the property is does not deprive the court of its jurisdiction. It may go on and render a binding judgment or decree. Freeman v. Howell, 24 How. 450, 457. As stated in the quotation from Freeman v. Howell, cited, “Where a court has jurisdiction, it has a right to decide every question which occurs in the cause.” It is
But in attachment, punishment for contempt and the power of restitution, the courts have more ample, summary and heroic methods of maintaining their jurisdiction, compelling respect thereto, and enforcing the due administration of justice. These measures are held to be’absolutely necessary for the furtherance and execution of justice. They have been long practiced and are well established as a part of the law of the land. They are used by the courts against two classes of persons, ministers of the court, its officers and jurors, and all other persons who are guilty of contempts of the writs of the court, contempts in the face of the court, contemptuous words or writings concerning the court, contempts of the rules and awards of the court, and abuses of the process of the court. Paidicular persons included in this last class are inferior judges, counsellors, gaolers, and any person whatsoever, guilty of the acts named. Hawk. C. P., 206, 223. In such eases, -the court may, if necessary, imprison the parties offending, and that without indictment or information, and yet the guaranty of a trial by jury is not violated. State v. Fredlock, decided at the Fall Special Term, 1902; Mason v. Bridge Co., 16 W. Va. 864; State v. Frew, 26 W. Va. 214; State v. Mc
It is impossible for a court lo fully perform its functions, if it has no power to direct and control its executive officer, power to cmpel him to do what he is commanded to do, power to compel him to refrain from doing, under mere color of authority, what he is forbidden to do, or what he has no authority to do. ITence, he is under the control of the court through its power of attachment and punishment for contempts, for not executing its writs effectually, and for making false returns. Hawk, C. P., 207, 208. In Tidd’s Pr., Vol. I, 485, it is said that these powers may be exercised by any of the English courts of general jurisdiction, against “inferior judges and officers, for acting unjustly, oppressively, or irregularly, in the execution of their duty; or for disobeying the King’s writs issuing out of the Superior courts, by proceeding in a cause, after it has been put a stop to, or removed by a writ of prohibition, certiorari, habeas corpus, super-sedeas, or error, etc.,” and “fifthly, against sheriffs, or other persons having the execution of writs, for not returning them, or bringing into court the body of the defendant, etc., on being served with a rule for thát purpose;” and “against gaolers, etc., on the Lord’s act, for extortion or oppression,” and against other persons “for contempts committed out of court; for a rescue, or contemptuous words spoken of the court, or its process.” Among the contempts mentioned by Blackstone are, “Those committed by sheriffs, bailiffs, gaolers, and other officers of the court; by abusing the process of the law, or deceiving the parlies, by any acts of oppression, extortion, collusive behavior, or culpable neglect of duty.” 4 Blk. Com., 284. “Sheriffs and other officers are liable to an attachment for an oppressive or illegal practice in the execution of a writ; as using needless force, violence, or terror, treating persons under an arrest basely and inhumanly, extorting money from them, etc., or making an arrest without due authority.” Bacon Abr., 463, title Attachment.
The use of these extraordinary methods is discretionary with the courts and are not usually employed except in cases of pal
Inquiry may be made here as to the reason for the citation of all these authorities, showing that courts have the inherent power to punish for contempts, inasmuch as nobody is here appealing from a judgment in such case. The reply is, that these measures and the authority to so punish are grounded upon, and flow out of, the necessary jurisdiction and control of the court over property which forms the subject of its action and is within its jurisdiction and prove, by their very existence and their varied functions, that such plenary power to vindicate, uphold and defend their jurisdiction and compel respect to their authority is lodged in the courts. Of course, mere punishment of offenders would not always effectuate the purposes of jurisdiction, although it is often resorted to to compel the faithless officer to perform his duty. Courts have the further power to right the wrongs perpetrated by the abuse of process as well as those resulting from their own erroneous decision and actions. For this purpose, the writ of restitution, as old as the law itself, has been used. See Simpson v. Juxon, Cro. Jas. 699, where it is held that if judgment be reversed on error a writ of restitution shall be awarded. “When the thing levied upon under an execution has been sold, the price for which it is sold is to be restored.”' Bouv. Law. Dic., title Restituiion. Fleming v. Riddick, 5 Grat. 272; Keck v. Allenger, 42 W. Va. 425; Little v. Bunce, 7 N. H. 485; Croker v. Clement's Adm'r. 23 Ala. 296. In Duncan v. Kirkpatrick, 13 S. & R. (Pa.), 292, Gibson, J., said: “In this respect, the judgment, when.entered in form, is not only that the judgment of the court below be reversed, but that fit is considered that the defendant lie restored to all things which he has lost on occasion of the judgment aforesaid” and the writ of restitution which is issued in pursuance of it, and in which the sheriff is
In applying these principles it is necessary, first, to ascertain the relation of the parties to one another and to the court and the status of the property. It is almost needless to say that the property was in the custody of the court. It had been levied upon under an execution issuing from the court that made tlic order *of restitution. So far as this record discloses, there was a valid judgment, a valid execution thereon, and a valid levy of the .same. A suspending bond had been delivered to the officer by a •claimant of the property, and section 4 of chapter 107 of the Code says that, “When such bond is' so delivered the sale of the property shall be suspended.” From the reading of that section, it is manifest that the mere delivery of such bond operates .a suspension of the sale. While it says that the suspension shall 'be at the instance of the claimant, lie is not required by said section to do more than deliver the bond. Such bond effectually stays the execution in the sheriff’s hands and he is powerless to sell. A sale thereafter is not only insufficient to pass title, but, if wilfully made, or if made collusivcly, for the purpose of favoring the execution creditor, it amounts to an abuse by the sheriff •of the process of the court and would subject him to punishment for contempt. McWilliams v. King, et al., 32 N. J. L. 21; Hopkins v. Sears, 14 Vt. 494, (39 Am. Dec. 236); O'Donnell v. Mullin, 27 Pa. St. 199, (39 Am. Dec. 458). As he had no power to
This order, it must bo remembered, is not an adjudication between parties, but only one in favor of the court against all the parties. The restoration is not to the defendant or to the claimant, but to the custody of the law, to the end that final adjudication of the rights of the parties may hereafter be made. By this-order, nobody has been deprived of his property. Nothing is affected except rights relating to the horse, and the alleged pur
The judgment will be affirmed.
Affirmed.