16 Ill. 534 | Ill. | 1855
Informations against persons for contempts, in disturbing the order of court in its presence or out of it, for breach of injunctions, and disobeying its orders and decrees, and such like, are not within the meaning, nor of the character of informations, in the 5th section of the act in relation to change of venue, Rev. Statutes, 528. Informations, within the meaning of said act, are such as are punishable under the provisions of the criminal code, upon presentment of the grand jury, informations filed ex-officio by the State’s attorneys, and on appeals from justices of the peace, etc. The order of the Peoria circuit court, changing the venue in this case, was simply void, and did not have the effect to divest the court of its jurisdiction, and no order of the Tazewell circuit court was necessary to re-instate it. Consequently, there was no case for the application of the rule, as laid down in The People v. Scates, 3 Scam. R. 355, and the Tazewell circuit court could not acquire jurisdiction under a nugatory order of another court.
In the examination of the merits of the remaining questions raised in the assignment of errors and arguments, we would be understood -as distinctly waiving any determination, whether a defendant in a criminal information for a contempt, can appeal or maintain a writ of error. See in the case of Yates, 4 John. Rep. 353, a very full examination and discussion of the doctrine of contempts, and the mode and power of revision.
The first objection we notice is, that no attachment for a contempt, by breach of an injunction, can issue, after the dissolution of the injunction. The case cited, Moat v. Holbein, 2 Edw. Ch. R. 188, does not lay down the rule in reference to issuing an alias attachment after dissolution. The party there had never been charged and proceeded against for the alleged contempt, during the continuance of the injunction. Here they had been under recognizance to answer.
When the charge is made, it becomes a distinct proceeding on behalf of the people, and will not depend upon the continuance of the injunction. Although an application for an attachment originally, might be refused, after dissolution of the injunction, yet a pending accusation would not bo dismissed. There might be cases where the breach would make the further continuance of the injunction useless and of no avail to the party. Proceedings, as for a contempt, as a means of securing and enforcing the civil remedy, are recognized as a right of the party in interest. Hawley et al. v. Bennett, 4 Paige Ch. R. 163, and distinguishable from a merely criminal contempt. In New York it is intended and enforced, to make part satisfaction for the damage done the party by the breach. Rogers v. Patterson, 4 Paige Ch. R. 455 ; Hawley et al. v. Bennett, 4 Paige Ch. R. 165; Albany City Bank v. Schermerhorn, 9 Paige Ch. R. 374; People v. Spalding, 2 Paige R. 326. Although our practice may not allow any compensation to the complainant, out of the fine assessed, yet its imposition upon the defendant, is his only remedy, with imprisonment, for the protection of his rights under the injunction. Presented for the purposes of affording civil redress, there is no solidity in the objection to the talcing proofs on the part of the prosecution, to contradict defendant’s answers to the interrogatories filed. Such is the general, though it may not be the universal, practice, whether on a motion to show cause why the attachment should not issue, or upon hearing of the contempt. Rutherford v. Metcalf, 5 Hayw. R. (Tenn.) 60, 61, etc.; Underwood’s case, 2 Humph. R. 46; Hawley v. Bennett, 4 Paige R. 164; McCredie v. Senior, 4 Paige, 380 ; Rogers v. Patterson, 4 Paige R. 454, 455; Albany City Bank v. Schermerhorn, 9 Paige, 374, 375; The People v. Spalding, 2 Paige, 326 ; Contra, Murdock’s case, 2 Bland. R. 461. In Underwood’s case, 2 Humph. R. 48, the court lays down the proper distinction between the course of practice in courts of law and equity, and mere contempts, and acts that are treated as contempts for the enforcement of orders and decrees, as part of the remedy sought. “ In cases of common law, the defendant will be discharged, if, by his answer to interrogations filed, he make such a statement as will free him from the imputed contempt, and that opposing testimony will not be'heard,” and “in cases in chancery, the truth of the defendant’s statement in reply to interrogatories filed, may be controverted on the other side, and the whole matter be inquired into and ascertained by the court.” And this is fully sustained in the case of Yates, 4 John. R. 372, where the judgment is held conclusive of the contempt upon a habeas corpus, and a strong doubt expressed of a power to revise upon appeal or writ of error. Ibid. p. 353. Lord Mansfield recognized the same distinction in the King v. Vaughn, 2 Douglass R. 516, where he states the practice in chancery to be, to take testimony on. both sides. 4 Black. Com. 288. Blackstono notes, also, the distinction that exists as to the nature and object of proceeding as for a contempt. Where the contempt is by a party to the suit, and committed by disobedience to any rule or order, such as payment of costs or money, the proceeding for contempt is in the nature of a civil execution on the decree, to enforce payment by personal process. Proceedings for contempt for breach of injunction, are of a kindred nature, to preserve the subject matter of the dispute, in the same condition it is, or such condition as will enable the court to administer full relief and justice eventually. 4 Black. Com. 285. See Dane Abrid. Cap. 220, art. 4; .1 Harrison Chancery, 202.
The party then may controvert the answers in a case like this. If the affidavits taken on the hearing, are before us in the record, which I altogether doubt, yet no objection was taken to looking into them, we find abundant reason for dismissing the injunction, and it may be the bill itself, in the breach shown. The mischiefs intended to be prevented by the injunction, had been irreparably committed by the breach, and its continuance would appear to be without object. The house was undermined and the walls thrown down. When the attachment had been granted for the breach, and a prosecution instituted to punish its authors, the bill might well be dismissed, and the complainant proceed at law to recover his damages, while he proceeded with the attachment for redress by fine for contempt. We do not think this proceeding was discontinued by dismissing the bill.
Judgment below approved.
Judgment affirmed.
