Mead v. Norris

| Wis. | Jan 15, 1867

Downer, J.

This case is before us on an appeal from the order of the circuit court, ordering “ that the following orders of the circuit court be set aside and vacated, and that the defendant be allowed to defend said action and the proceedings as for contempt therein: 1st The order by which it was adjudged that the defendant was in contempt of the court, and that said defendant pay to the plaintiff the sum of six thous- and dollars. 2d. The order by which leave was granted to the plaintiff to prosecute the bond of the defendant given to obtain his discharge from arrest on attachment for contempt.”

The defendant, in his affidavit, admits that be disregarded the injunction, and removed the mill in violation of it. He claims that the sheriff, when be served the injunction, did not exhibit to him the original, but only gave him a copy, and that his counsel advised him that such service was not good. The sheriff returned that be did not only give him a copy but exhibited and showed to him the original order of injunction. It is enough for us to know that be bad knowledge that the injunction was granted. He was then bound to obey it. Advice of counsel cannot save him from the penalties of contempt. So much of the order as vacates the order or judgment of the court below, adjudging the defendant in contempt, must be reversed, with costs.

But the more difficult question arises under that part of the order vacating the judgment for damages. The circuit court found that the plaintiff bad been injured by the misconduct of the defendant in removing the mill in violation of the injunction, to the amount of six thousand dollars, and rendered judgment for that sum. The appellant contends that the defendant, being in contempt, is not entitled to be beard until be has purged his contempt. The general rule is, that the court will not bear a party in contempt, coming himself into court to take any advantage of proceedings in the cause; but such party is entitled to appear and resist any proceeding taken against him, and is entitled to the same notice of such proceedings as though be were not in contempt. If a notice is not given when it is required by the rules or practice of the court, the proceedings are irregular, and may be set aside on the application of the party injured thereby, notwithstanding be is in contempt. King v. Bryant, 3 M. & Craig, 191. The general rule is not without exceptions. See Rickets v. Morn-ington, 7 Sim., 200; Wilson v. Bates, 3 M. & Craig, 197. There can be no doubt, if no notice of the bearing bad been given, tbe defendant might have moved to vacate the judgment, though he was in contempt. It would seem to follow that where, through the mistake or excusable neglect of the party or his attorney, judgment is entered ex parte, and there is reason to believe injustice has been done, that such judgment may, on the motion of the party in contempt, be set aside. "We have some doubt whether the affidavit of Mr. Sloan, one of the defendant’s attorneys, shows a sufficient excuse on their part for not appearing and resisting the judgment. But on the whole we have come to the conclusion that enough was shown to excuse the defendant’s neglect, and to entitle him to have the judgment for damages vacated, and a new trial or assessment. -

By the Court. — So much of the order appealed from as vacates the order or judgment of the circuit court adjudging the defendant in contempt, is reversed, with costs ; and in other respects it is affirmed with costs.