Howard v. Durand, 36 Ga. 346

Howard v. Durand

36 Ga. 346 | Ga. | 1867

Lead Opinion

Walker, J.

1. There is no question as to the power of a Court of Equity to enforce obedience to its orders by attachment. Code, sections 200, 3157,4125, and 4127. The question here is, do the facts make such a case as to require this Court to control the discretion of the Court below.

2. It has been often decided that the action of the Superior Courts in granting or refusing injunctions will not be controlled, except when it may appear there has been a flagrant abuse of discretion. The same rule should apply to the action of the Courts relative to the punishment of parties alleged to be contumacious. Whether a contempt of Court *359has been committed which should be punished, may generally be safely left to the discretion of the circuit Judges. They are not likely to fail in enforcing due respect to their orders ; and their action in such cases should be final, unless there is something in the decision to show a most flagrant abuse of the discretion. Cabot vs. Yarborough, 27 Ga. R. 476. Especially should this Court be slow to control that discretion, where the circuit Judge has declined to punish the party. We are satisfied that we may safely leave to the circuit Judges, the infliction of such punishment as may be necessary to enforce obedience to their orders, and vindicate the authority and dignity of their Courts.

3. Without contesting this position, the plaintiff insists that his case comes under a different rule, that his motion is not made simply to vindicate the authority of the Court, but for the purpose of protecting his rights, that here the attachment sought is remedial, not to punish for an act done in contempt of the Court, but to compel the doing of an act necessary to the administration of justice. Cobb vs. Black, 34 Ga. R. 162. We recognize the distinction here drawn, and in a proper case, are ready to enforce the rule for which the plaintiff contends.

4. In this case, the defendant was enjoined from using or selling the property in litigation. This injunction, the plaintiff alleges, has been violated by defendant. Suppose the Court had “ committed defendant for said contempt,” would this afford any remedy to Howard ? Would it restore the property sold ? Do not the facts show that the only effect of the punishment, would be to vindicate the authority of the Court, and not furnish any remedy for the plaintiff? We think so. Hence the question was one for the discretion of the Court below. If this were a remedial proceeding, to ■which the plaintiff is entitled for the enforcement of his rights, then we would control the discretion of the Court below, and award to the party that relief to which, under the facts and the law, he would be entitled.

5. When the plaintiff made his application to a Court of equity, he showed such facts as entitled him to the aid of its *360extraordinary powers. That Court laid its strong hand upon Durand, and would have preserved the property and protected Howard from all injury arising from the interference with it by Durand, had it not been for the subsequent conduct of Howard himself. Howard took upon himself the control and management of the business for which he had previously invoked the aid of the Court, and consented to a violation of the injunction granted at his instance. This being so, he must suffer the consequences. He cannot subsequently have the other party punished for a breach of the injunction, when that breach was by his consent. Mills vs. Cobby, 1 Meriv. R. 3 ; 3 Dan. Ch. Pr. 374. These parties entered into a new contract, by which the injunction was in effect dissolved; and because defendant failed, as it is alleged, to comply with this contract, the Court is asked to punish him for the violation of the injunction previously granted. As evidence of the view that complainant took of his rights, we may refer to the .fact that he sued on the obligation to recover the damages, to which he says he is entitled on account of Durand's failure to comply with the contract. This shows that complainant thought he had made a new contract, and if that contract had been carried out, was not the bill at an end without anything further to be done? If so, can it be pretended that the injunction was vital all the while ?

6. A Court of equity will not lend its punitive powers to one party, for the purpose of coercing the opposite party into the making of new stipulations to which he had never agreed; nor, under pretence of punishing for a breach of an injunction, will it attempt to enforce a contract made subsequent to the granting of the injunction.

7. Equity will enforce the rights of the parties according to the rules and practice of the Court; and parties who invoke its aid, should not, by contract, thwart its proceedings and render nugatory its processes. Should they do so, they ought not to expect to be relieved from the consequences of their own interference.

Judge Harris, while he agrees in asserting the legal propositions here maintained, thinks the facts are mot such as to *361make them applicable. He thinks the judgment should be reversed, and an attachment awarded.

Judgment affirmed.

Dissenting Opinion

Harris, J.,

dissenting.

I- do not concur in the judgment rendered in this case by the majority of the Court. The decision has been made, I think, upon an entire misapprehension of the facts. There is not one of them from which the assent, either positively or impliedly, of Howard can be inferred, to the violation of the injunction by Durand. This injunction had reference entirely to Howard’s interest as a copartner. The negotiation begun afterwards by Durand, had not the slightest reference to the matters involved in Howard’s bill, but was an offer by Du-rand to sell to Howard Ms (Durand’s) share in the partnership. It fell through by the bad faith of Durand. Had this negotiation had any connection with Howard’s interest as a partner, broken off as it was, by Durand’s non-compliance with his agreement to sell, Howard ought not to be permitted to suffer any injury thereby; but surely when the negotiation had not the slightest relation .whatever to the matters in controversy under Howard’s bill, there can be no plausible reason assigned for not allowing him the benefit of an attachment for contempt, to coerce Durand to make good any damages he may have sustained, — not beyond the penalty of the injunction.