8 S.D. 308 | S.D. | 1896
Plaintiffs in error were charged in an affidavit for and order to show cause why they should not be punished for contempt of court for taking from the possession of a receiver appointed by the circuit court in the above entitled action a certain locomotive dummy engine and car, upon which it is claimed a lien for repairs existed against the Watertown & Lake Kampeska Railway Company, in favor of the firm of Marshall & Burdick, whose coprrtnership effects had been placed in the hands of said receiver pending litigation between the members of said firm. At the conclusion of the hearing, plaintiffs in error were adjudged to be in contempt, and it was by the court ordered “that said Ebenezer F. Spaulding pay a fine of one hundred and fifty dollars, and that in default of the payment thereof that he be committed to the county jail of Cod-ington county until said fine is paid; that the said George W. Case pay a fine of one hundred dollars, and that he be suspended from practicing law in the circuit court of said state from the service of this order until said fine is paid, unless otherwise ordered by the court.” From the foregoing judgment of conviction error is brought to this court for examination and review.
Dependent upon possession, one who alters or repairs any article of personal property for another has a lien thereon for his reasonable charges, but such lien is extinguished by the voluntary restoration of such property to the owner, unless otherwise agreed upon by the parties. Comp. Laws, §§ 4345, 4450. As all questions of fact relating to the jurisdiction of a court to punish for contempt are within the scope of legitimate inquiry, we will first ascertain whether there is evidence sufficient to show that the property in question was rightfully within the possession of the receiver, Mr. Newby, by virtue of a lien
Concerning the taking of the engine and car Spaulding testified in part as follows: “I went down that night to steam up, and set my engineers to work to make any further repairs that might be necessary. The repairs on the engine had been made during the Saturday night previous. The only object in going there in the night was to complete our repairs and make a test of the engine, so that we might run it in the morning early. The encampment was already under way. We had lost two day’s time already. The encampment was on the way, and I gave the engineer orders to commence running early in the morning. I did not take them secretly nor by stealth.” The following testimony of E. J. Allen was offered on the part of the accused: “I live near Watertown. I am an engineer. I have operated this dummy engine and car in question. I was employed by Dr. Spaulding last June as head engineer. I was present July 1st, when the car and engine were taken. Dr. Spaulding, myself and the conductor went to the car, and Dr. Spaulding had the keys, and took them out, and I rather think it was him that unlocked the door. I told him the first thing to do was to get it somewhere where we could get water, .and we run it down to the Arcade. Before running it down I spoke of a fireman who fired for me, and where he lived, and he sent after him. He was there when we moved the car. There was no one said a word to us. The engine and car was
Although it was held in Withers v. State, 36 Ala. 252, and Kane v. Haywood, 66 N. C. 1, that suspension from practice could only follow in a proceeding instituted for that purpose alone, or for disbarment, and that such punishment ought never to be inflicted upon an attorney at law for a contempt of court, we express no opinion thereon, because the question is not essential to a determination of the case before us. The process by which the accused were reached and brought into court, the offense with which they were charged and for which they were tried and convicted and sentenced to pay a fine or suffer imprisonment in one instance, and suspension from the practice of law in the other, are all distinctly and essentially criminal in their character, and in order to sustain a conviction it must appear that the acts committed constitute a contempt of court. State v. Knight, 3 S. D. 509, 54 N. W. 412; State v. Sweetland, 3 S. D. 503, 54 N. W. 415. Persons tried upon such a charge are presumed to be innocent until their guilt beyond a reasonable doubt is established by competent evidence. See 4 Enc. Pl. & Prac. p. 768, and numerous cases from different states collated in the notes. There is no primary evidence that any specific amount was due from the railway company to Marshall & Burdick for repairing the engine or car in dispute; nothing sufficient to show that said property, at the time in question, was in the possession of the receiver, L. A. Newby, or that any agreement had ever been entered into by which to perpetuate the statutory lien notwithstanding the apparent restoration of the property to the railway company, or the receiver thereof appointed by the federal court. Prom a regardful examination of the entire record, we are unavoidably led to the conclusion that no essential element of the offense charged was established by the evidence. The judgment convicting plaintiffs in error of a contempt of court is therefore reversed, and the trial court is directed to dismiss the proceedings.