Castleman v. State

47 So. 647 | Miss. | 1909

Mates, J.,

delivered the opinion of the court.

This is an appeal by Oastleman and others from an adjudication of the chancery court of Washington county, adjudging them guilty of a contempt for Violating an order of the court given in an injunction proceeding. In reference to the question being litigated between complainants and defendants, several suits were filed, beginning with the suit filed by the Yazoo & Mississippi Valley Railroad Company against Castleman and the Delta Southern Railway on the 4th day of July, 1906, and numbered on the chancery docket of Washington county as 3,400, followed by the suit of the Belzoni Oil Co. against the Yazoo & Mississippi Valley Railroad Company and numbered 3,454, filed on August 11, 1906, and still further followed by the amended and supplemental bill to No. 3,450, filed on September 6, 1907, by the Yazoo & Mississippi Valley Railroad Company against Castleman, the Belzoni Oil Company, and the Delta Southern Railway. All of these proceedings prayed for injunctive relief. It is claimed that this last bill was simply amendatory of and supplemental to the first bill, filed by the Yazoo & Mississippi Valley Railroad Company against Castleman and the Delta Southern Railway, and is therefore to be treated just as if it was that first bill; but this amendatory and supplemental bill itself prays for injunctive relief, and on its prayer was issued the order which it is charged appellants violated. Bonds were duly executed in all the- cases before the issuance of the writ of injunction, except in the case of the supplemental and amended bill, and in that no bond was filed or provided for by the chancellor after the restraining order was authorized.

We do not deem it necessary to follow the different suits begun, since the question of whether or not these parties were guilty of contempt must be determined by the particular pro-, ceeding under which it is alleged the contempt occurred and about which they were cited. When the supplemental and amended bill was filed praying for an injunction, the chancellor issued the following order: “The State of Mississippi, to the Delta Southern Railway Company, a corporation, S. Castle-man, and the Belzoni Oil Company, a corporation—Greeting: You will hereby take notice that an application has this day been made to the undersigned, chancellor of the chancery court of said county, in vacation, for an injunction commanding and enjoining you, your agents, and employees from in any way or manner connecting any railroad track or placing any frog or other appliances for a railroad crossing, or making any railroad connections whatever, for the purpose of crossing or getting onto or using in any manner those certain spur tracks and switches now situated on the property of the Belzoni Oil Company, and claimed to be the property of it and the Yazoo & Missippi Valley Eailroad Company, or from doing any act whatever that will obstruct in any way the use of tire said spur tracks and switches by the said Yazoo & Mississippi Valley Eailroad . Company, and to remove any obstructions or connections made upon or with said spur tracks and switches, and to restore same, said application being made by the said Yazoo & Mississippi Valley Eailroad Company, and that a hearing" of said application and motion for injunction thereon has been set by me for hearing in my office, in the city of Greenville, Mississippi, on Thursday, the 12th day of September, A. D. 1907, at 9 o’clock a. m. You are therefore commanded hereby to appear at said time and place, in person or by attorneys, then and there to show cause, if any, why said application should not be granted, and said motion sustained, and said injunction granted as prayed; and until the hearing of said motion you are hereby restrained from doing or performing or permitting any.of the acts or things herein above set forth.”

This order shows that when the application was made no injunction was granted, but citation was issued to the defendants to show cause why an injunction should not be granted, fixing the 12th day of September, 1907, as the day on which same should be heard. After declining to grant the injunction, the chancellor further ordered that until the hearing of the motion the defendants should be “restrained from doing or performing or permitting ány of the acts or things done about which they were sought to be enjoined.” In short, the chancellor declined to issue the injunction, on the application without hearing the defendants, yet made an order restraining them from continuing their work, and thereby gave the same effect to the restraining order as would' have been given to the injunction if he had granted it. The citation was served on September 7, 1907, requiring the parties to appear and show cause why the injunction should not issue on the 12th day of September following. On the 9th day of September, 1907, one John' Pelley made affidavit before the chancellor charging that the defendants had violated the order of the court, and jarayed that they be cited for contempt. The affidavit shows .that the information filed by Pelley charges the parties with being in contempt for violating the restraining order, and recites as follows, viz.: “That on the 6th day of September, 1907, Hon. Percy Pell, chancellor of the chancery court of said county of Washington, in vacation, did issue and sign, and have delivered to the sheriff of said county to be executed and returned, a certain order of process, a copy of which is filed herewith, attached hereto, and made a part hereof, just as if the same were set out here in full.” An agreement shows that the order referred to is the restraining order issued on the 6th day of September. On this affidavit the chancellor issued a citation to the defendants, reciting that it had been made to appear by affidavit of Pelley, that after the issuance and service of the restraining order, on September 7, 1907, the restraining order was violated by Oastleman, etc. All of the record shows that the contempt charged was for a violation of the restraining order alone, and that as far as this proceeding is concerned, none of the other proceedings had in this litigation are involved.

We do not deem it necessary to consider the evidence offered to prove the alleged violation of the order, since the controversy must be determined by the validity of the order. We cannot treat this so-called restraining order as an injunction, because the very decree which restrains the parties also declines to issue .an injunction, and-because no bond was given or required to be given, as required by Code 1906, § 610. Before any writ or order can be given tbe effect of an injunction, by whatever name the writ may be called, it is essential that a bond be required and given; and, if it is not, the injunction is a nullity. Section 610, Code of 1906; Diehl v. Friester, 37 Ohio St. 473; Winslow v. Nayson, 113 Mass. 411; Ex parte Miller, 129 Ala. 130, 30 South. 611, 87 Am. St. Rep. 49.

We are aware that there is authority holding differently; but it is clear that under our statutes these authorities cannot apply, since the statute is express in its declaration that a bond •should be filed before an injunction should issue. When an •application is made for an injunction, only three courses are •open to the judge to whom the application is made. He must ■grant the injunction, or he must refuse it, or he must issue citation for the parties defendant to appear and show cause why an injunction should not issue. If the last course is pursued, it is of itself a declaration on the part of the judge that in his judgment the defendants should not be molested until they have had a hearing. A citation cannot be issued to show cause, .and at the same time and in the same decree a restraining order issued to stop the defendants until they can be heard. If a judge may grant a restraining order for six days, having the effect of an injunction, without bond, he may grant one for a longer period. .To uphold this order would be to defeat the requirement of the statute as to bond altogether. A temporary injunction is in effect a restraining order, but no temporary injunction can be issued without bond. A restraining order is not only foreign to our practice, but foreign to the necessities of same. In many jurisdictions a restraining order may be issued; but in the cases which we have examined on this subject it is because of a statute allowing it to be done, and the restraining order always requires a bond, and is very much the same in practice as a temporary injunction. The issuance of the restraining order under the facts of this case was a nullity.

But it is contended on the part of the state that, though the issuance of the restraining order might be void if it stood alone, and the appellants might not be liable for a contempt for-its violation, still they are liable under the facts of this case, because the restraining order was issued on a bill amendatory of and supplemental to another bill filed praying for an injunction, and wherein an injunction had been granted and a bond given. We cannot agree to this contention. Bor the purpose of this contempt proceeding, each of the bills filed must be treated as independent of the others. The charge against appellants is that they violated the restraining orden—that, and that alone. No mention is made in the affidavit or in the citation of the violation of any order of the court save this restraining order. The issue is made upon this, and the facts considered must be upon the issue made. 9 Oye. p. 47; Ency. Plead. & Prac. 1110, 1112. This order was void, and, being void, the appellants could not be held in contempt for a violation of same. Bletcher on Equity Plead. § 537; High on Injunction, vol. 2, § 1425.

Reversed and dismissed.