In re Smith, 54 Colo. 486

54 Colo. 486 | Colo. | 1913

Mr. Justice Gabbert

delivered the opinion of the court:

It will be observed that the judgment of which plaintiffs in error complain is based entirely upon the pleadings. To ■ properly present the application for another judge to try the case in which the application was filed, it was necessary, in order to comply with the decisions of this court, for counsel representing the members of' the board of county commissioners to set out the 'facts in detail upon which the alleged prejudice and bias of the judge of the district was predicated. — Thomas v. People, 14 Colo. 254. Doing so did not constitute a contempt per se when it appears, as we have stated, that the statements made in the affidavit supporting the application were not of a character which could be regarded as contemptuous, — Mullin v. People, 15 Colo. 437; so that these statements would not constitute a contempt unless it was established by evidence that they were made with a reckless disregard of the truth, or with the intention to reflect upon the honor, integrity and character of the judge. It was, therefore, necessary to inquire and ascertain the meaning and intention of the respondents in making the statements in the application upon which the proceedings were based. — Thomas v. People, supra; Mullin v. People, supra.

As preliminary to this procedure, the affidavit of Mr. Hilliard appended to the information charged that these statements in particulars were false, unwarranted and wickedly and maliciously intended to constitute an attack upon the honor and integrity of the court. Had evidence been presented establishing these allegations, the respondents might properly have been adjudged guilty. This procedure was not followed, as the judgment was based entirely upon the pleadings, consisting of the information, containing a copy of the statements made in the application, and the answer, the latter merely stating more in detail the facts related in the application filed by the respondents. This answer, in effect, denied that these statements were false, or wickedly or maliciously made, or intended as an attack upon the honor and integrity of the court. It appears, then, that there was no proof of the charge upon which the proceedings were based. Without such proof, the pleadings not containing any statements which were contemptuous per se., the court, in pronouncing judgment, acted without and beyond its jurisdiction.

The judgment of the district court is reversed and the cause remanded, with directions to overrule the motion for a judgment on the pleadings, and for further proceedings according to law. Reversed and Remanded.

Chief Justice Musser and Mr. Justice Hill concur.