67 So. 212 | Miss. | 1914
delivered the opinion of the court.
Appellant, an attorney at law, was adjudged guilty of contempt by the circuit court and fined twenty-five; dollars.
We gather from the testimony taken on the hearing that the alleged contempt consisted in appellant’s making certain changes in a motion for continuance in a civil suit, in which he was attorney for the plaintiff, without the consent of the court, and after the motion had been overruled.
The trial judge and attorneys representing the defendant testified that consent was not given by the court to the making of the amendments and that they did not have any knowledge of the alterations in the motion until for a time after they were made.
Appellant testified that, when the application for continuance was called for hearing, he informed the court that he desired to make some changes in the motion; that he then stated the amendments he wished, to make, and proceeded with his argument of the motion, believing that ■ the court understood and consented to the proposed changes. In his testimony, appellant further said he understood that the court had’ granted him permission to write the alterations and!
The record does not contain any rule against appellant to show cause why he should not be punished for contempt. No order of the' court as a foundation for the citation is therein set forth. It is definitely stated in -the record that “no motion, petition, bill, or other complaint,” setting forth the contempt charged, was on file in the circuit court against appellant. The citation was ordered issued by the trial judge at his own instance, when a motion was made to strike out the certain amendments, etc., made in the motion for continuance. The citation served on appellant did not contain a statement of the facts which constituted the alleged contempt. It only cited him to appear at a certain hour and day and show cause why he should not be punished for contempt of court in a certain matter pending in the court. Appellant was not given information in the citation or in any other way of what the charge against him consisted of, so as to enable him to make his defense.
There is no direct contempt (that is, contempt committed in the presence and view of the court) shown by the facts in this case. If there is contempt in what was done, then it is constructive contempt; that is, an ■act done not in the presence of the court, but which' tends to obstruct, interrupt, or embarrass the administration of justice. In constructive contempt there must be a proper foundation laid before process issues, and the application or foundation of contempt must contain a statement of that, which constitutes the • contempt. Ency. Plead. & Prac. vol. 4, p. 776; Parkhurst v. Kinsman, 2 Blatchf. 76, Fed. Cas. No. 10,759; Ex parte Wright, 65 Ind. 504.
In Parkhurst v. Kinsman, supra, it was held that in moving for attachment for contempt, plaintiff must
We quote from the opinion in the case of Ex parte Wright, supra:
“A contempt of court is either direct or constructive or, as the latter was anciently called, consequential. A direct contempt is an open insult, in the face of the court, to the person of the judges while presiding, or a resistance.to its powers in their presence. A constructive contempt is an act done, not in the presence of the court, hut at a distance, which resists their authority, as disobedience to process, or an order of the court, such as tends in its operation to obstruct, interrupt, prevent, or embarrass the administration of justice. For a direct contempt the' offender may be punished instantly by arrest and fine or imprisonment, upon no further proof or examination than what is known to the judges by their senses of seeing, hearing, etc.; but, in rendering the judgment and making up the record, the causes of such contempt should be stated. The grounds of a constructive contempt should be stated by affidavit, by the return of some officer* or in some way made known to the court, prima facie, by witnesses or otherwise, so that they may be made a part of the record; and this should be done before a rule or writ is granted against the alleged offender. 4 Bl. Com. 283, 286, 288; Tidd, Practice, 478* 482.”
It is stated in 9 Cyc. p. 39, that:
“Before a person can be found guilty of a contempt not committed in the presence of the court, he must have due and reasonable notice of the proceeding. A rule to show cause, an attachment, or other process should issue. The usual course is to issue a rule to show cause why an attachment should not issue.”
We quote from 9 Cyc. p. 41, as follows:
*774 “The rule to show cause should inform defendant of the nature of the contempt alleged.”
In the case of Stuart v. Reynolds, 204 Fed. 709, 123 C. C. A. 13, it was held that in cases of constructive contempt—
“it is proper to adhere substantially to the method' of criminal procedure, except in the matter of jury trial, and the attachment or rule should be like an indictment, to the extent of giving the contemnor an opportunity to defehd by informing him concerning tlje nature and particulars of the offense charged. Bates’ Case, 55 N. H. 325; Hurst v. Whitly, 47 Ga. 366; Langdon v. Wayne Circuit Judges, 76 Mich. 358, 43 N. W. 310; Re Bradley, 7 Wall. 364, 19 L. Ed. 214; Hovey v. Elliott, 167 U. S. 409, 17 Sup. Ct. 841, 42 L. Ed. 215.”
In Encyclopedia of Pleading and Practice, vol. 4, p. 779, it is said that:
“The almost universal method by which contempt proceedings are begun is by an affidavit, and an examination of the authorities will generally disclose that in all contempt proceedings, save for such as are committed in the court’s immediate presence, an affidavit is essential. ’ ’
In the recently decided case of Sona v. Aluminum Castings Co., 214 Fed. 936, — C. C. A. —, it was held (quoting from a headnote):
“In general process of arrest for contempt, not committed in the court’s presence, can properly issue only on the filing of an affidavit stating the facts positively and in such a way as prima facie to show the commission of a contempt.”
In Wyatt v. People, 17 Colo. 252, 28 Pac. 961, it was declared that a constructive contempt must be brought to the court’s attention by affidavit which should state the facts which, if established, would constitute the offense.
Even where the court proceeds upon its own motion, the party accused must be sufficiently informed of the charge ag’ainst him, so that he may be able to properly defend against the accusation. The foundation for proceedings in contempt may be based upon an information filed, in which there should be a statement of the facts constituting the contempt. 4 Ency. of Plead. & Prac., p. 781.
We find that the practice in this state in some cases has been to base proceedings in constructive contempt upon information filed in.the court by the district attorney. This was so in the cases of O’Flynn v. State, 89 Miss. 850, 43 So. 82, 9 L. R. A. (N. S.) 1119, 119 Am. St. Rep. 727, 11 Ann. Cas. 530, and Durham v. State, 97 Miss. 549, 52 So. 627.
We find in the present case that there was no foundation laid for the process issued and served on appellant. There was no affidavit, nor information nor an order of the court preceding the citation. Appellant was not told of the specific acts charged against him. There was no statement of the facts which, if established, would constitute the offense. He was not informed of the nature of the contempt alleged. His trial and conviction was not lawful.
The case is therefore reversed, and appellant is discharged.
Reversed.
