22 Wash. 53 | Wash. | 1900
The opinion of the court was delivered by
This is an original application for a writ of habeas corpus directed to the sheriff of TTfng county, requiring him to restore the petitioner to his lib
On the same day the court, upon the application of the plaintiff, supported by her affidavit, granted an injrmctive order restraining and prohibiting the defendant from interfering with the plaintiff during the pendency of the action, and from “in any manner disposing of or mortgaging” a certain lodging house described in the order.
ETo necessity for an injunctive order is set forth in the complaint, nor is there any prayer therein for such an order. The order was made without any notice whatever to the defendant; and the affidavit on which it was made does not set forth any reason why the order should issue without notice, nor does it contain any showing of emergency whatever. The order itself makes no provision for a hearing, and no return day was inserted. Thereafter, plaintiff filed an affidavit charging the defendant with having violated the terms and conditions of the order, whereupon- rule to show cause issued. Upon the return day, after hearing the parties and considering the proofs, the court adjudged the petitioner guilty of contempt, and directed that he pay a fine of $100, and be imprisoned in the county jail of King county for the term of twenty days.
The question to be determined is, Did the court have lawful authority to make the order which the petitioner violated? Under numerous decisions of this court, it must be held that in granting the injunction without notice, and without any showing of necessity therefor, and in failing to make any provision for notice and an opportunity for hearing, the court exceeded its powers, and the petitioner is entitled to his discharge. State ex rel. Miller
The question is settled hy the statute, which contains a eleai’ and unmistakable limitation upon the power to grant injunctions. Section 270, 2 Hill’s Code, is as follows:
“Ho injunction shall be granted until it shall appear to the court or judge granting it that some one or more of the opposite party concerned has had reasonable notice of the time and place of making application, except that in cases of emergency, to be shown in the complaint, the court may grant a restraining order until notice can be given and hearing had thereon.”
In State ex rel. Miller v. Lichtenberg, supra, we said:
“ The court gets no jurisdiction in the matter for the purpose of interfering with the rights of either party until the giving of notice as required by statute. The temporary order provided for in said section [270, supra~\ is not the result of the formal action of the court, with proper jurisdiction, to determine whether or not the defendant’s rights should be interfered with, but only the exercise of extraordinary power vested in the court from the necessities of the case to prevent a failure of justice
The fact that the order which the' petitioner is charged with having violated was made in the course of the proceedings in an action for divorce does not take the case out of the rule laid down in the authorities already cited, or warrant the application of a different rule. It is a principle universally recognized that notice and an opportunity to be heard are essential to the exercise of jurisdiction. In a case of grave exigency and pressing emer
Due process of law, orderly procedure, and a decent regard for the rights of individuals, alike require the giving of notice and an opportunity to be heard; and to depart from this universally recognized principle in a case presenting no emergency, is to disregard the plain provisions of the statute (§ 270, supra,), and a principle as old as the law itself. The conduct of the petitioner was flagrant and reprehensible, but this consideration does not aid us in determining the legal principle involved in and underlying the question we are called upon to determine.
The petitioner must be discharged, and it is so ordered.
Dttxbar, Reavis and Tttllertox, JJ., concur.
