| S.D. | Mar 29, 1900
Appellant moved in the court below to be discharged from custody, because it appears upon the face of the return that there is no sufficient cause for his detention. The motion was denied. It is alleged in the return that appellant is in custody by virtue of an order of commitment for contempt, made by the county court of Minnehaha county. The original order of commitment and a certificate under the hand of the county judge, reciting certain proceedings in his court, are attached to, and made part of, the return. It may be observed, in passing, that the original process should have been retained by the sheriff, and that the return, with its several exhibits, is nothing more than the sheriff’s pleading, but, for the purposes of the motion to discharge, all material facts recited therein are to be taken as true.
It appearing that appellant is in custody by virtue of process from a court legally constituted, he can be discharged only for one or more of the following causes: “(1) When the court has exceeded the limit of its jurisdiction, either as to the matter, place, sum or person. (2) Where, though the original imprisonment was lawful, yet by some act, omission or event, which has subsequently taken place, the party has become entitled to his discharge. (3) Where the process is defective in some substantial form required by law. (4) Where the process, though in proper form, has been issued in a case or under circumstances where the laws do not allow process or. orders for imprisonment or arrest to issue. (5) When, although in proper form, the process has been issued or executed by a person either unauthorized to issue or execute the same, or where the person having the custody of the prisoner, under such process, is
The scope of inquiry in this proceeding being thus clearly defined by the statute, there would seem to be little need of resorting to the case law of other states for the purpose of ascertaining to what extent contempt proceedings may be reviewed by the writ of habeas corpus. If the statute conflicted with the authorities, it would have to prevail. But it does not. It is in harmony with the modern American doctrine concerning the powers and duties of courts having authority to issue writs of habeas corpus. Some of the older authorities regarded jurisdiction of the matter and of the person sufficient to give the court jurisdiction to pronounce a judgment which could not be successfully assailed by this writ. The rule now supported by high and abundant authority and excellent reason is that the court must not only have jurisdiction over the person and the matter, but authority to render the particular judgment The judgment is not conclusive upon the question of the authority of the court to render it. That, as well as any other matter which would render the proceeding void, is open to inquiry. 7 Am. & Eng. Enc. Law (2d Ed.) 36. There are three essential elements necessary to render a conviction valid. These are that the court must have jurisdiction over the subject-matter, the person of the defendant, and authority to render the particular judgment or order. If either of these elements is lacking, the judgment or order is fatally defective.
It appears from the sheriff’s return that appellant, as special administrator of an estate being administered in the county court, failed and refused, without any excuse, to comply with an order of that court requiring him to forthwith deliver to the administrator all papers, effects, and assets of such estate in his possession. , Does the law, to use the language of the slatute, allow process or orders for imprisonment to issue under such circumstances? The statute expressly declares that when letters of administration have been granted the powers of the special administrator cease, and he must forthwith deliver to the administrator all the property and effects of the decedent in his hands. Comp. Laws, § 5749. Therefore the order which appellant disobeyed merely required the performance of a duty expressly enjoined by the law. Undoubtedly the county court had power to make such an order provided there was an administrator to whom the property should have been delivered, and it must be presumed, for the purposes of this discussion,' that there was a duly appointed and qualified administrator. Then, the important inquiry arises whether the law allows the enforcement of such order by an order of imprisonment. Manifestly there are many valid orders, judgments, and decrees of courts in this state which cannot be thus enforced or executed. This is the precise situation upon the facts alleged in the return: A special administrator refuses, without any excuse, to deliver the property of the estate to the administrator. Und.er the law and order of the county court, the latter is entitled to
It is conclusively settled, by a long line of decisions, that at common law all courts of record have inherent power to punish criminal contempts. In the absence of a constitutional provision on the subject, the better opinion seems to be that such power cannot be limited or regulated by the legislature. Nor does the constitutional provision, that the trial of all crimes shall be by jury, take away the right. Rap. Contempt, §§ 1, 11. Where this power is inherent, and cannot be limited or regulated by legislation, statutes conferring the power in particular cases will not be construed as excluding it by implication in others. Nebraska Children’s Home Soc. v. State (Neb.) 78 N.W. 267" court="Neb." date_filed="1899-02-09" href="https://app.midpage.ai/document/nebraska-childrens-home-society-v-state-6652719?utm_source=webapp" opinion_id="6652719">78 N. W. 267. The county court in this state being a court of general jurisdiction, in respect to all probate matters, created by the constitution, it has inherent power to punish all criminal contempts, although the statutes designate particular cases in which it may compel obedience to its orders by proceedings as for a contempt.
It would be difficult, doubtless impracticable, to lay down a general rule by which, in all cases, to distinguish civil and criminal contempts, with one or the other of which every act of contempt must be classified, but substantially the main distinction is this; Civil contempts are those quasi contempts which consist in failing to do something which the contemner is ordered by the court to do for the benefit or 'advantage of another party to the proceeding before the court, while crimi
Did appellant’s acts, as shown by the sheriff’s return, constitute a criminal contempt? He was an officer of the court, created by it, and a trustee as to all parties interested in the estate. There was no dispute concerning the property in his hands; no dispute concerning his duty to deliver it to the administrator; performance of such duty was demanded; and he refused to perform it, without any excuse. His refusal was wilful, and its effect was fo obstruct the,administration of jus tice. It is the right and duty of the county court to proceed with the due administration of this estate. It cannot do so unless its order requiring delivery of the property to the administrator is complied with. If it cannot commit for contempt, it is without power to proceed in a matter of which it has jurisdiction, and concerning the disposition of which its duty is plainly prescribed by the statutes. The administration of justice has been obstructed by the wilful misconduct of an officer of the court. The court should have, and we believe it has, inherent power to employ adequate means to accomplish the objects for which it was constituted. We think appellant was, upon the facts admitted to exist for the purposes of the motion to discharge, guilty of a criminal contempt, and that the
Appellant filed a voluminous answer to the sheriff’s return, which was stricken out on the greund, inter alia, that it did not state facts sufficient to constitute a defense or answer to the return. For the purpose of determining whether the circuit court erred in its ruling in this respect, the well-pleaded allegations of the answer must be taken as true. It is alleged that prior to making the order requiring appellant to deliver the property of the estate to the administrator the judge of the county court became disqualified, because his son, an attorney at law, had contracted with certain persons to conduct the prosecution of their claim and petition to be adjudged sole heirs of the deceased, for a contingent fee. If the facts alleged, respecting this matter, are true, the judge was disqualified. Vine v. Jones, 13 S. D. 54, 82 N.W. 82" court="S.D." date_filed="1900-03-07" href="https://app.midpage.ai/document/vine-v-jones-6685631?utm_source=webapp" opinion_id="6685631">82 N. W. 82.
However, unless the acts of the county judge, after becoming'disqualified, were void, the allegations respecting his son’s interest in the estate are immaterial in this proceeding. While it is well settled by the common law that no judge ought to act where, from interest or from any other cause, he is supposed to be partial to one of the suitors, yet his action in such a case is regarded as an error or irregularity not affecting his jurisdiction, to be corrected by a vacation or reversal of his judgment, except in the case of those inferior tribunals from which no appeal or writ of error lies. In most of the states, statutes have been passed which, in direct terms, prohibit judges from
The statute in this state applicable to the subject under discussion reads as follows: ’’Whenever the county judge of any county is a party to or personally interested in any proceeding in any probate matter therein or connected by blood or affinity to any person so interested nearer than the fourth degree, or when he is named as a legatee or devisee, or executor or trustee in a will or is a witness thereto, such fact or facts
It is also alleged in appellant’s answer that, when served with the citation to show cause why he should not be attached for contempt, he appeared specially, and objected to the jurisdiction of the court, on the grounds that an appeal had been taken from the order appointing an administrator which operated as a supersedeas; that the judge was disqualified because of his sons’ interest in the estate; and that sufficient notice of the citation had not been given. It is also alleged that he appeared at the same time, and fully disclosed his reasons for re fusing to deliver the property, and stated to the court that none of his acts were intended as acts of contempt, but that his only desire and purpose was to determine what his duties were in the premises. As we construe the answer, taking all of its allegations together, it shows that appellant made a general appearance, and he is not in position to assert that the court was without jurisdiction because sufficient notice of the hearing was not given. Were it conceded that the court should have given appellant more time to consult with counsel, and to determine what were his duties under the circumstances, its action was at most merely erroneous, and not reviewable in this proceeding. The court had authority to cite, the appellant to appear. He appeared, and the court, upon the hearing, decided there was no reason why its order should not be obeyed. However erroneous such decision may have been, it was one the court was authorized to make, and the order based thereon is not void.
It is further alleged “that on the 8th day of February, 1900, after the making and entry of the said order in said