3 Port. 356 | Ala. | 1836
The plaintiff in this Court, (who was plaintiff below,) presented his petition, sustained by two affidavits, to' the judge of the Circuit Court of Covington, stating that the'-defendant liad committed a' breach of an injunction, issued at his instance, against the defendant; and praying that an order might be made, directing that his body might be taken and detained, until he should enter into bond,
On the petition, the judge made an order, substantially conforming to its prayer.
The questions of law, which the facts of this case, ’ 'seem to present, are— • _ .
First — Had the Circuit Court of Covington, jurisdiction of the contempt, with which the defendant is charged ?
Second — Was the petition with the affidavits, and the, order of the judge made thereupon, in vacation, conformable to the practice in such cases?
Third — Was the decree of the Court, dismissing the order for an attachment, (without making any .other,) regular and proper?
1. In respect to the first point, it may be remarked, that the power to enforce its- own process, and to. vindicate contempts of its authority, is one inherent in courts of justice : otherwise, the law, and its judges would be unceasingly visited with contumely and disrespect — the one utterly powerless, and the other incapable of imparting to its influence.
Assuming this proposition as 'a postulate, it is ma-terial to ascertain whether the process or authority of Circuit Court or its judge has been contemn* ed. An application was made, by the plaintiff, for injunction, to the judge of that court, who grant-*t, an(i it was issued, accordingly. Upon the cause coming on for hearing, the injunction was dis-solved, and the bill dismissed. A writ of error hav-been prosecuted to this court, the decree of dis-missal was reversed, the injunction re-instated and. perpetuated. The effect of the decree of the Cir-' cuit Court, so long as it remained unreversed, al>
2. The practice in this State is, where it is made to appear, by affidavits, to a Judge in vacation, that an order or decree in a chancery cause has been violated, ior the Judge to make a suitable order with a view to the trial and punishment of the contempt, at the succeeding Court. And the proceeding is understood to be authorised by the constitutional provision, which invests the Judges of the Circuit Courts with chancery jurisdiction, and perhaps results as a consequence, from the act of the Legislature, which confers the power to award writs of injunction and ne exeat.
We have no statute or rule of Court, prescribing the manner in which parties shall be proceeded against for contempts, in cases such as this; but are
It may be remarked, that in England, the Court of Chancery is considered as al ways open, with am-pie power tojnaintain its authority ; while according to the organization of our Courts, we have certain prescribed terms for the despatch of business. The initiatory step, it is true, may be taken in vacation, but the matter must be definitely acted on in Court.
■ In the absence of any positive regulations of our own, we are constrained to adopt the English mode of procedure. The order made in vacation, in this case, does not conform to it, bnt, directs the issuance of process for the seizure and detention of the defendant’s body, until-he execute bond with surety in a prescribed penally. Such order would operate the severest oppression, if made against one who was guiltless, should he be unable to find sureties — and in our view, is indefensible.
3. It remains then, but to enquire, whether the decree of the Circuit Court, disposing of the proceeding for a contempt, is erroneous.
The failure of the court thus to dispose of this proceeding, is, in our opinion, an error; for which, the judgment must be reversed,- and cause remanded.'
Wilmot's Opin. 257-8 et post.; 3 Term R. 253;-2 ib. 643; 7 ibid 439. 527; 3 Blac. 285; Hawk. P.C. bk 2§33; 4 Just.23; Sul.L.494; 1 Dal.15; 6 John. 337; 9 ib. 395; 2 Va. Cases, 408
Eden on Inj. 56