51 Ala. 66 | Ala. | 1874
[After stating the facts, as above set forth.] The jurisdiction of the chancellor to grant an injunction in any case, on a bill filed, as he may think fit, is beyond all question. This power is expressly given by the statute. The authority, as expressed in the Code, is declared in these words: “ Injunctions may be granted, returnable into any of the courts of chancery in this State, by the judges of the supreme and circuit courts, chancellors, and no other officers.” Rev. Code, § 3426. When an injunction is so properly granted, issued, and served on the party or parties sought to be enjoined, it would be useless, if it could be disregarded. The order granting it is an order in the cause. To disobey such an order while it is in force is a contempt of the court. Gates v. McDaniel, 3 Port. 356. Under the Code, the chancellor has jurisdiction to issue an attachment for a contempt, against any party to a cause pending in the court, who refuses obedience to the chancellor’s orders. Rev. Code, §§ 700, 638, cl. 3; Ex parte Walker, 25 Ala. 81. The chancellor, in the discharge of his duties as such, represents the sovereign power of the State in its judicial’department. Const. of Ala. 1867, Art. III. § 1; Art. VI. § 7; Rev. Code, § 698. It is the duty of all parties litigant in such court, and their counsel, to yield a respectful obedience to their judgments, orders, and process, and the orders of a judge out of court, in an action or proceeding therein. Rev. Code, § 638, cl. 3. And especially is this duty enjoined on the attorneys of the court. Rev. Code, §§ 869, 871.
It is said in a book of accredited authority, that every court of record, as incident to it, may impose reasonable fines on all such as may be guilty of any contempt of its authority. 2 Bac. Abr. (Bouv. ed.) 633, E. And the courts may proceed in a summary way to punish for contempts, notwithstanding the constitutional provision, that crimes shall be tried by a jury. The power to punish for contempts is incident to courts of law and equity. 7 Cr. 32; 6 John. 337; 9 John. 395; 4 John. 317; 1 Burr’s Trial, 352; Charlton, 136; 1 Breese, 266; 36 Ala. 253; 3 Port. 356, supra. Then, a proceeding for contempt is not a criminal prosecution. It is only in a criminal prosecution that the accused has the right to be heard by himself and counsel, or either. Const. Ala. 1867, Art. I. § 8. If a proceeding for contempt were a criminal prosecution, then it could not be tried by the chancellor, nor could a jury be dispensed with. Const. Art. I. § 8, supra. But, in such a proceeding, it is by due process of law to proceed by attach
It may, however, be thought that this right to be heard in argument before the court arises out of another clause of the constitution, which is in these words : “ That no person shall be debarred from prosecuting or defending before any tribunal in the State, by himself or counsel, any civil cause to which he is a party.” Const. Ala. 1867, Art. I. § 12. The language used in this latter section of the constitution is different from that used in the former. There the right of the accused is to be “ heard by himself and counsel, or either.” Here it is to prosecute and defend. The former section gives the right to address the court and jury in behalf of the accused, because the issue on a criminal charge is to be tried by a jury. But, in a civil case in a court of chancery, the argument of counsel is to aid the court with a clearer exposition of the law of the case, and of the facts. In a technical sense, this is no part of the prosecution or the defence. There was, then, no violation of right of the petitioners, or of their client, in the action complained of in the court below. It is only when a party shows a clear right, which has been illegally denied him, that this court will grant a mandamus to enforce such right, or a prohibition to protect it, and there is no other adequate remedy to which he may resort. In this case, the petitioners do not show that they stand in this attitude. The application is, therefore, denied with costs.
