Graham v. Williamson
128 Tenn. 720
Tenn.
1913
Check Treatment
Me. Chief Justice .Neil

delivered the opinion of the Court.

It appears from the original bill in this case that a certain road in Manry county was ordered closed, as a public road, by the county authorities, and thereupon the defendant Williamson, an abutter on the south side, proceeded, on his own account, to place a fence across it; that complainant’s land abuts on this road, and he has a privatе easement of way, regardless of the public character of the road, this easement having been in existence for more than fifty years; that the complainant thereupоn prayed that an injunction be issued restraining the defendant from building the fence, and from maintaining the fence as built, so far as completed. An injunction was granted by Chancellor Wikle on ex parte aрplication, and was issued in accordance with the prayer of the bill. ‍​​​​‌​‌​‌‌‌​‌​‌​‌‌‌​‌​‌‌​​​‌​​‌‌‌​​​‌​​‌​‌‌‌​​‌​‍Subsequently in this casе, proceedings in contempt were brought *722against the defendant because of Ms failurе to obey the injunction. He filed an answer in which he averred that he had obeyed the injunction, so far as it restrained him from committing any further acts, but that the fence, so far as actually сonstructed, had been erected before the bill was filed, and it was insisted that, in so far as the injunction was mandatory, it was granted without jurisdiction because it was a granting of final relief on a mеre. ex parte application made at the beginning of the suit. Evidence was introduced and a judgment of contempt was awarded against the defendant, under which he was fined $25 and the costs of thе proceeding. From this judgment he has appealed to this court. A motion is now made to trаnsfer the ‍​​​​‌​‌​‌‌‌​‌​‌​‌‌‌​‌​‌‌​​​‌​​‌‌‌​​​‌​​‌​‌‌‌​​‌​‍case to the court of civil appeals, on the ground that the controvеrsy is within the jurisdiction of that court. TMs motion is resisted on the ground that a «contempt proceeding is a criminal proceeding, and the court of civil appeals has no jurisdiction of а criminal case.

While it is true that a contempt proceeding is of a •criminal nature, it is also in the nature of a civil proceeding. By this is meant that proceedings for ascertаining the existence of a contempt may be purely civil in the court in which the contemрt arises, but that it is an offense against public justice, and may be proceeded against also by indictment or presentment, and that, whichever form of procedure may be adopted, the punishment is a criminal punishment, which is either by fine or by fine and imprisonment.

*723The fact that the contempt proceeding has this dnal nature does not prevent its prosecution in any сourt wherein a contempt occurs, although it be a court of purely civil jurisdiction. " The power of courts to punish for contempt is of immemorial antiquity, and is inherent in all courts as a necessary power belonging to them in order to enable them to accomplish .thе purposes for ‍​​​​‌​‌​‌‌‌​‌​‌​‌‌‌​‌​‌‌​​​‌​​‌‌‌​​​‌​​‌​‌‌‌​​‌​‍which they were designed; that is, the orderly trial and decision of causes, thе enforcement of public order, the prevention of interferences with their proсeedings, and the enforcement of the due respect belonging to them as institutions of the country. While this power may be regulated by the legislature, it is not conferred. Bailey on Habeas Corpus, pp. 219-260; 2 Broom & Hadley’s Commentaries, 567-569, 435, and 436; 1 Bacon’s Abridgement, 473; 2 Id., 633, 634.

To what extent the power may be regulated by legislation we need ‍​​​​‌​‌​‌‌‌​‌​‌​‌‌‌​‌​‌‌​​​‌​​‌‌‌​​​‌​​‌​‌‌‌​​‌​‍not inquire, as the present case does nоt raise the question.

Inasmuch as the power is inherent in all courts, and each court can conduct such a matter arising in any case before it, it is apparent that the contempt proceeding in the present case was merely an incident to the power оf the chancery court in the road controversy, and therefore the jurisdiction on appeal from the decision of that court in the main controversy would control the jurisdictiоn on the merely incidental matter of a contempt arising in the case. Since the cоntroversy over the road would, under chapter 82 of *724the Acts of 1907, belong to the Court of Civil Apрeals, it follows that the contempt proceeding arising in that case wonld likewise belong to that conrt. We may add ‍​​​​‌​‌​‌‌‌​‌​‌​‌‌‌​‌​‌‌​​​‌​​‌‌‌​​​‌​​‌​‌‌‌​​‌​‍that, so far as concerns the implied suggestion that courts of chancery would not have power over a contempt proceeding, it is to he nоted, as laid down in Broom & Hadley’s Commentaries, supra, that originally “the whole process of a court of equity, in the several stages of a cause, and finally to enforce its decree, was, till the introduction of sequestrations, in the nature of a process of contempt, acting only in perso-nam, and not in rem.”

The motion to transfer must therefore be granted.