35 Neb. 898 | Neb. | 1892
Lead Opinion
This was an action for false imprisonment in the district court of Scott’s Bluff county, in which defendant in error, plaintiff below, recovered judgment. The material facts in the case are as follows: Johnson,'one of the plaintiffs in error, commenced an action in the district court of said county against defendant in error Bouton, seeking to restrain the latter perpetually from diverting the' water from Winter’s creek, a water-course of said county, to the damage of his (Johnson’s) land. In the absence of the district judge therefrom, King, another of the plaintiffs in error, as county judge, allowed a temporary injunction in said case. Subsequently, and while said action was still pending, Johnson, with Feltham, his attorney, appeared before King and charged Bouton with violating the said order of injunction and caused an order to be issued for his (Bouton’s) arrest. Subsequently Bouton, who had in the meantime been arrested by virtue of the order aforesaid, was given a hearing by King and adjudged to be in contempt of court. He was accordingly sentenced to pay a fine of $30, and costs, and ordered to give bond in the
The first and most important question presented is that of the jurisdiction of a county judge to punish as for contempt the disobedience of an order of injunction allowed by him in an action in the district court. The authority for the allowing of an injunction by the county judge in such a case is found in section 252 of the Code, viz.: “The injunction may be granted at the time of commencing the action, or at any time afterward, before judgment, by the supreme court or any judge thereof, the district court or any j udge thereof, or, in the absence from the county of said judges, by the probate judge thereof, upon it appearing satisfactorily to the court or judge, by the affidavit of the plaintiff or his agent, that the plaintiff is entitled thereto.”
The only other sections of said chapter which have any bearing on the subject under consideration are sections 255, 256, 257, and 260, as follows:
“Sec. 255. No injunction, unless provided by special statute, shall operate, until the party obtaining the same shall give an undertaking, executed by one or more sufficient sureties, to be approved by the clerk of the court
“Sec. 256. The order of injunction shall be addressed to the party enjoined, shall state the injunction, and shall be issued by the clerk. Where the injunction is allowed at the commencement of the action, the clerk shall indorse upon the summons, 1 injunction allowed/ and it shall not be necessary to issue the order of injunction; nor shall it be necessary to issue the same, where notice of the application therefor has been given to the party enjoined. The service of the summons so indorsed, or the notice of the application - for an injunction; shall be notice of' its allowance.
“Sec. 257. Where the injunction is allowed during the litigation, and without notice of the application therefor, the order of injunction shall be issued, and the sheriff forthwith serve the same upon each party enjoined, in the manner prescribed for serving a summons, and make return thereof, without delay.
“Sec. 260. An injunction granted by a judge may be enforced as the act of the court. Disobedience of an injunction may be punished as a contempt by the court, or by any judge who might have granted it in vacation. An attachment may be issued by the court or judge,- upon being satisfied by affidavit of the breach of the injunction, against the party guilty of the same; and he may be required, in the discretion of the court or judge, to pay afine not exceeding two hundred dollars, for the use of the county, to make immediate restitution to the party injured, and give further security to obey the injunction; or, in default thereof, he may be committed to close custody, until he shall fully comply with such requirement, or be otherwise legally discharged.”
The general rule is that the authority to punish for con
“ Every court of record shall have power to punish by fine and imprisonment, or by either, as for criminal contempt, persons guilty of any of the following acts: First. Disorderly, contemptuous or insolent behavior towards the court, or any of its officers, in its presence. Second. Any breach of the peace, noise or other disturbance tending to interrupt its proceedings. ' Third. Willful disobedience of, or resistance willfully offered to, any lawful process or order of said court. Fourth. Any willful- attempt to obstruct the proceedings or hinder the due administration of justice in any suit, proceedings, or process pending before the courts. Fifth. The contumacious and unlawful refusal of any person to -be sworn or affirmed as a witness, and when sworn cr affirmed, the refusal to answer any legal and proper interrogatory.”
By the next section it is provided that contempts committed in the presence of the court may be punished summarily, but in other cases the party, upon being brought before the court, shall have a reasonable time in which to make his defense. It will be observed that the power to punish for contempt is by the section quoted conferred, not upon its judges, but upon courts of record. The county court is a court of record in a restricted sense only, viz., while acting within the jurisdiction which it possesses concurrently with the district court. (Schell v. Husenstine, 15 Neb., 11.)
That constitutional and statutory provisions upon the same subject should be construed together, and that all statutes should be construed with reference to the common law, are elementary rules of construction which have been repeatedly recognized by this court. By an application of those rules to the question before us it is plain that the literal wording of section 260 must yield to the evident meaning of the several provisions on this subject when construed in the light of the common law. The ¡power, .therefore, to punish for the violation of an injunction “by the court or any judge who may have granted it in vacation” is limited to the court or judge thereof who may have allowed the order in question.
Exceptions were taken to a number of instructions which need not be noticed, since they all state in different language the one proposition already considered, viz., that the county court had jurisdiction in the proceeding against the defendant in error for contempt.
Among the instructions refused are several containing the same proposition as the following: “In an action of false imprisonment it is incumbent upon the plaintiff to prove by a preponderance of evidence that the original prosecution was without probable cause and was malicious.” These instructions were properly refused. False imprisonment is the unlawful detention of the injured party. (Am. & Eng. Encyc. of Law, vol. 7, 662.) The question of malice is immaterial except so far as it affects the measure of damage. (Comer v. Knowles, 17 Kan., 436.) Casebeer v. Rice, 18 Neb., 203, relied upon by plaintiff in error, was an action for malicious prosecution and, therefore, not applicable.
Lastly, it is insisted that the damages are excessive. . The evidence discloses the fact that defendant expended $40 for the services of counsel in order to secure his discharge. He was detained in custody at least eight days, and was during said time imprisoned in the jail of the county twelve or thirteen hours. The verdict, $100, does not appear to be so disproportionate to the wrong as to call for action by this court.
Affirmed. '
Dissenting Opinion
dissenting.
I am unable to agree to the majority opinion for the following reasons: The proof clearly shows that the action was pending in the district court and that the district judge was absent .from the county, and-that the order of the county judge granting an injunction was .valid. The sole question presented is, Has the county judge authority to punish for the willful violation of an injunction granted by himself?
Section 252 of the Code provides: “The injunction may be granted at the time of commencing the action, or at any time afterward, before judgment, by the supreme court or any judge thereof, the district court or any judge thereof, or, in the absence of said judges, by the probate judge thereof, upon it appearing satisfactorily to the court or judge, by the affidavit of the plaintiff or his agent, that the plaintiff is entitled thereto.” This is a copy of the first
Section 253 of the Nebraska Code provides: “If the court or judge deem it proper that the defendant, or any party to the suit should, be- heard before granting the injunction, it may direct a reasonable notice to be .given to such party to attend for such purpose at a specified time and place, and may in the meantime restrain such party.” This is section 240 of the original Ohio Code.
Section 260 of the Nebraska Code is as follows: “An injunction granted by a judge may be enforced as the act of the court. Disobedience of an injunction may be punished as a contempt by the court, or by any judge who may have granted it in vacation.. An attachment may be issued by the court or judge, upon being satisfied by affidavit of the. breach of the injunction, against the party guilty of the same; and he may be required, in the discretion of the court or judge, to pay a fine not exceeding $200, for the use of the county, to make immediate restitution to the party injured, and-give further security to obey the injunction; or in default thereof, he may be committed to close custody until he shall fully comply with such requirement, or be otherwise legally discharged.” This is a copy of section 247 of the original Ohio Code. .
In looking through the reports of that state we have been unable to find a single case in which it was held that a judge who granted an injunction could not punish for a violation of the same. There is but little doubt violations of injunctions issued by county judges have taken place in that state and been punished by such judges, but if so, the plain'language of the statute was held to be a sufficient warrant for such arrest and punishment, hence the cases were not taken to the supreme court. Under our statute the district court has jurisdiction to punish for a violation
Giving the words of the statute their plain natural meaning, a county judge has authority to punish the violation of an order of injunction, lawfully granted by him, and this, so far as the writer is advised, has been the construction placed on these words -by the courts and bar of the state for ■ a third of a century. Cases analogous to this frequently arise in those states where a temporary order of injunction is granted by a circuit court commissioner. Thus in Nieuwankamp v. Ullman, 47 Wis., 168, an order of injunction had been granted by a circuit court commissioner against an insolvent debtor to restrain him from disposing of his property. The order being violated, the court held that the commissioner could punish for a violation of the order, but that the court possessed the power also. The matter is discussed in Haight v. Lucia, 36 Wis., 355, in which it was held that in certain cases where the statute authorized it, a circuit court commissioner could punish for contempt. The Wisconsin statute is as follows: “Every court commissioner may issue subpoenas for witnesses, and attachments and other process to compel their attendance, administer oaths, take depositions and testimony in civil actions, when authorized by law, or by rule or order of any court having jurisdiction of such actions, and return and report such depositions and (jstimony: take and certify the ac
In this case it is distinctly held that a circuit commissioner, although his powers are much less than those of a county judge, may punish for the violation of an injunctional order issued by him, although the circuit courts also-possessed that power. It is very clear to my mind that the county judge had jurisdiction and that the judgment; should be reversed.