45 Fla. 295 | Fla. | 1903
Lead Opinion
This cause was duly considered by Division B upon the transcript of the record, end oral argument and briefs for the respective parties, and said Division being-of opinion that the question decided ought to be submitted to the court in, banc, referred the cause to the court in banc for decision.
The appeal is from an order of the Circuit Court of Hillsborough county, made upon a rule to show cause adjudging appellants to be in contempt of that court for disobeying a temporary injunction entered in a certain chancery cause therein pending, wherein the appellees were complainants,, and the appellant, the Florida Central & Peninsular Railroad Company was the defendant. The injunction writ forbade the railroad company, its attorneys, agents, servants and employes laying or attempting to lay a railroad track upon’certain land which the bill alleged was owned and possessed by appellees, and from connecting or attempting to connect said railroad track with certain land described in the bill. The other appellants were the attorneys and agents of the company who either advised the doing of the forbidden acts or participated in the work after knowledge of the writ.
The court adjudged appellants guilty, imposed a fine of twenty-five dollars and costs upon each, with a provision that if not paid in twenty days that'Maxwell, Dozier, Wall and Knight stand committed to the county jail until payment of the fines or the further order of the court, and that the property of the railroad company be sequestrated to pay its fine. It was further adjudged that the
It is argued in this court that an appeal lies from this order; that the judge who made it was disqualified, and that the bond required of appellees by the injunction order had not been given when the acts were done that constituted the violation of such injunction, and, therefore, that the injunction order had! no binding force at the time it is alleged to have been violated. The court being of opinion that appellees’ contention that an appeal does not lie from the order punishing appellants for contempt is correct, the appeal will be dismissed, without considering the other questions sought to be presented.
Tn Caro v. Maxwell, 20 Fla. 17, it was held that an appeal does not lie from an order of the Circuit Court imposing a fine for a contempt fin violating an injunction. The question was directly involved in that case and many authorities are cited to sustain the proposition. In Palmer v. Palmer, 28 Fla. 295, text 300, 9 South. Rep. 657, the court m-y,,s †0 f¡ie mle announced in Caro v. Maxwell, and says: may remark that where the judgment is void as fgr ñ-nnt of jurisdiction of the court, the remedy is by habeas corpus, and where it is merely irregular or erroneous there is no appeal or other right of review. Church on-Haheas Corpus, Chap. 23. Judgments for contempt can not be rv.,iewp(^ appeal or writ of error for mere irregularity or m . †|10^ CRn ^0 assailed only for illegality, and this it se(?lll>-'^1st be by habeas
There are eases which hold that where contempt proceedings are resorted to in-the ordinary course of chancery practice as a means of enforcing the payment of money decreed to a complainant, or to compel the performance of some act required by a de"-ee to be done for his benefit, an appeal will lie from me ¿ecree made therein. To this class of cases Sanchez v. Sanchez, 21 Fla. 346, may be assigned. There an order <vas made January 20, 1883, requiring appellant to p-’ oertain' sums to appellee, his wife, for alimony an/’('ounset tees- On May 15, 1883, it was adjudged thaf-[PPellant be attached for contempt for not eompk ^^th the order of January 20,
It is contended for appellants that the order in this case is not strictly punitive, but that it is remedial and affects property rights, and that, therefore, it falls within that class of cases to which we have assigned the Sanchez case. The direction to the company and its- general manager to tear up the track- built in violation of the injunction, and in default tMu-eof, that the general manager be v onunitteed, it is contended is of this nature, but we do not so -ag^d. it. That 'provision simply requires the company and genera] manager to undo an act done in violation of the injunction, in order that the property might be restor&d to the same situation as when the injunction was granted, an(j ag a punishment for failure t° do that act^ commits the general manager of the company to imprisonment ’This portion of the order adjudges no right-to colu¡caiuants. It adjudicates no right against the company an -general manager. It merely imposes terms upon u ncr . -v parties will be permit
* For the reasons stated the. appeal must be dismissed at < the -cost of appellants.
Dissenting Opinion
dissenting.
Tn my judgment that part of the order of the court below which directed that the F. C. & P. R. R. Co. should remove its track constructed in disobedience of the. injunction and that, its general manager, should be imprisoned until this be done, is remedial in its nature, designed to enforce the previous order of the court, and to so-^^ the complainants the enjoyment of their 'W°Perty as sought to be preserved by the temporal WP}ludion, for breach of which this contempt prW16^^ was imitated. This Icings it within that of cases to which the majority of the court, assign the case of Sanchez v. Sanchez, 21 Fla. 346, where an appeal was Wrnutfed.