Edge v. Commonwealth, 139 Ky. 252

Edge v. Commonwealth

139 Ky. 252 | Ky. Ct. App. | 1910

Opinion op the Court by

Judge Nunn

Reversing.

This appeal is from a judgment of $500 and six months’ confinement in the county jail, rendered against appellant by the Scott circuit court for an alleged contempt of that court. This court has in several cases determined that an illegal or erroneous judgment in a contempt case might be corrected and reversed upon an appeal. ■ See the cases of Bickley v. Commonwealth, 2 J. J. Marsh. 575; Turner v. Same, *25359 Ky. 619; French v. Same, 97 S. W. 427, 30 Ky. Law Rep. 98.

Appellant was a member of a law firm in Lexingington, styled “Baker & Edge.” One Mrs. Eichardson was confined in the Lexington Asylum under an order of the Scott county court. She employed an attorney by the name of Minogue to aid her in being released from the asylum, and to recover her property in Scott county from the possession of her children, who also claimed it, and who, or a part of whom, caused her to be sent to the asylum. Minogue engaged the law firm of which appellant was a partner to aid him in these matters. It was ascertained by Minogue that the proceedings in the Scott county court in which Mrs. Eichardson was declared a lunatic were void, and a writ of habeas corpus was sued out and tried before the judge of the Fayette circuit court, and the proceedings of the Scott county court were declared void, and Mrs. Eichardson was released from ihe asylum. She went to a boarding house in Lexington and remained until early in October, 1909. On October 4, 1909, the Scott circuit court convened, and one of her sons, W. A. Eichardson, sued out from the Scott county court a writ for Mrs. Eichardson’s arrest and arraignment before the Scott circuit-court for a hearing as to her mental condition. She was taken in charge by the officer under this .writ, but while they were preparing to carry her to Scott county a second habeas corpus was sued out, and upon a hearing the circuit judge held the Scott county court’s order of arrest void, and Mrs. Eichardson was discharged. This took place on the afternoon of October 6, 1909. Mrs. Eichardson returned to her boarding house, and the proprietor told her that she could not keep her any longer, that she needed her room, *254and disliked the notoriety of the arrest in her house. She then consulted with’ 'Some of her relatives in Lexington, and especially with a cousin, Dr. Estes, as to what she had better do. He advised her to go to Cincinnati to visit his brother, another cousin of hers, and to take a rest while there. She then advised with her attorneys as to whether, she had a right to go where she wished, and they told her that she did. She left that afternoon, went to Paris where she boarded a train the next morning and arrived in Cincinnati by 9 o’clock. Estes arranged with one Frederick to accompany her on her way. Before leaving Lexington, she applied to appellant, Edge, for a loan of money with which to make the trip, and he let her have $15. On October 7th the Scott circuit court issued a rule against Baker, Minogue, and appellant, Edge, for them to show cause why they should not be punished for contempt of court for aid in removing or concealing Mrs. Richardson so as to prevent the officer from bringing her before the court, and thereby obstructing its process. They responded, and denied the statements in the rule, and also the affidavits upon which it issued. They also disclaimed any intention of contempt towards the court. The rule was discharged on October 18th, and the respondents were dismissed. On the same day another rule was issued against the same parties to appear forthwith and show cause why they should not be punished for contempt of court for having since October 7th willfully and corruptly kept Mrs. Richardson in Cincinnati to prevent the execution of the writ of October 4th, and to prevent an inquiry by the court as to her mental condition. On the trial of this last rule the court, at the conclusion of the evidence, gave a peremptory instruction in be*255half of Minogue and Baker, bnt overruled the motion made in behalf of appellant, Edge.

The testimony, with reference to appellant’s connection with the matter, is, in substance, that he, with the other two attorneys, represented Mrs. Richardson in the trial of the fir§t and second writs of habeas corpus — the first to release her from the asylum and the second from the writ of arrest issued by the county court of Scott county. In both of these proceedings the circuit court judge of Fayette county sustained them and released Mrs. Richardson. After her release the second .time, she applied to apjjellant for information as to whether she had a right to go where she pleased and he advised her that she did have. He did not advise her to go any place. He had nothing to do with that matter, and it was at this time that she asked him for the loan of $15, which he let her have. This was after Mrs. Richardson had been released, and before the rule against appellant and his co-counsel was issued on October 7th near 10 o ’clock, about the time Mrs. Richardson arrived in the city of Cincinnati. Appellant never saw or advised with her after that until he went to Cincinnati to take her deposition in behalf of himself and co-counsel to be used on the trial of the first rule of date October 7th, and at this time he made her another small loan. This is practically all the testimony connecting appellant in any way with the matter.

Appellant was a licensed lawyer, and it certainly could not be considered a contempt of court to represent this unfortunate woman in the habeas corpus proceedings, and, after she was released by a court of competent jurisdiction, to advise her she had the right to go where she wished and to make the small loans to her. The advice was given and the $15 loan *256was made before any rule was issued by tbe Scott circuit court; and Mrs. Richardson did have the right to go to see her relatives, if she so. desired. In our opinion, the lower court should have sustained appellant’s motion for a peremptory instruction, and dismissed the proceedings against him.

■ For these reasons, the judgment of the lower court is reversed and remanded for further proceedings consistent herewith.