141 P. 101 | Utah | 1914
This proceeding was commenced in the district court of Utah County, Utah, against one John W. Hoover, to have him adjudged guilty cf contempt. Upon an application therfor being duly filed, an order was made by the district court of Utah County requiring said Hoover to show cause why he should not be adjudged guilty of contempt. Said Hoover, hereafter called appellant, appeared in court and filed an answer to the allegations contained in the application, and upon a hearing to the court was adjudged guilty of contempt in that he had violated the provisions of a certain judgment or decree made by the district court aforesaid. The facts alleged in the application for an order to show cause in substance are as follows! That on the 26th day of January, 1901, in an action then pending in the district court of Utah County, in which there were 113 plain
At the hearing it was proved that the appellant had violated the said decree in that he'used a large quantity of water of the Provo River to which he had no right whatever, and which belonged to the plaintiffs and the defendant, the West Union Canal Company, and the court so found the fact to be. The court found the appellant guilty of contempt and adjudged that he pay a fine of twenty-five dollars, and in default of payment that he be committed until paid or until the further order of the court. The court also entered a judgment as follows: “It is hereby ordered, adjudged, and decreed that the defendant John W. Hoover (appellant) pay to the clerk of this court for the benefit of the complainants herein the sum of $150” as damages sustained by them, as previously found by the court.
"It must appear that such order, judgment, or decree has been personally served on the one charged, or that he had notice of the mafoing of such order or the rendition of such judgment or decree.” (Italics ours.)
In 3 Ency. Pl. & Pr. 777, it is said:
*480 “Where one is present in court and has personal knowledge of the order he is alleged to have disobeyed, no service of the same-upon him need he shown.”
This would be true, even in a ease where the one charged was not a party to the action but merely a privy, or in some other way related to the proceeding. In Oswald, Contempt of Court, 203, it is said:
“In order to Justify committal for breach of a prohibitive order,, it is not necessary that the order should have been served upon the party against whom it has been granted, if it be proved that he had notice of the order aliunde.”
If this is the law with respect to prohibitive orders generally, it must likewise be true with respect to judgments and decrees to which the one charged is a party and under which he claims certain rights.
“Mr. Hoover (appellant) upon this day assumed an attitude of absolute defiance. He said that it was a great deal easier for him to put in bis dam and take this water from Deer Creek than it was for tbe commissioner or any one else from Provo to come up there and take it (tbe dam) out. He also said that he thought by taking this water be could raise enough crops on bis land to probably pay all of bis fine that be would bave to pay.”
It is thus made apparent from appellant’s own, statements that be took and used tbe water willfully and without any regard for tbe rights of others. Moreover, from tbe foregoing statements it is clear that be did not even make an attempt to justify tbe taking of tbe water but took it because, as be considered tbe matter, it was cheaper and. more profitable for him to violate tbe decree and pay a fine for doing so than it was to permit others to use their own water. Such conduct is beyond justification or excuse either in law or morals.
Under tbe foregoing provision, tbe court may bear evidence and assess tbe damages against tbe contemner, if any bave been sustained by tbe “party aggrieved.” Tbe courts, however, bold that, where damages are awarded under .such a statute, they must be ascertained in tbe same way as is usually done; that is, under tbe procedure applicable in courts of justice for ascertaining what tbe damages, if any bave been inflicted, amount to. See Bapalje on Contempt, section 133. This court is committed to that doctrine. Thompson v. McFarland, 29 Utah, 455, 82 Pac. 478.
Under tbe foregoing rule, that part of tbe judgment in which damages are awarded to tbe “complainants” cannot be sustained. Where there is only one party who sustained damage by tbe contempt, or where there are several whose interests are joint, ordinarily no difficulty arises in assessing and awarding judgment for tbe damages. Where, however, as here, there are 114 “complainants” in whose favor a judgment is rendered for damages in a lump sum, we cannot see bow it is possible for any one, however wise, to make apportionment of tbe damages thus allowed. That is an insuperable obstacle even if there was no other.
'The judgment adjudging appellant guilty of contempt and that he pay a fine of twenty-five dollars and, in default of payment, stand committed as ordered by the court is affirmed. 'That part of the judgment awarding damages is reversed, set aside, and held for naught. Neither party to recover costs.