28 Fla. 295 | Fla. | 1891
The ground upon which the appellee moves to dismiss the appeal is, that the appellant at the time of the rendition of the final decree, and at that of entering her appeal, had been declared by the Circuit Court to be in contempt' of its authority for failure to comply with its order commanding her to deliver one of the children, Ruby, to Mrs. Kennedy, the custodian appointed by the court, and for departing from the jurisdiction of the court with Ruby in her custody, which contempt continued and had not been purged by ap
It does not appear from the transcript that there has ever been any service of the rule for Mrs. Palmer to show cause why she should not be attached for contempt, but on the contrary it is affirmatively shown that the rule did not reach the hands of the sheriff for service until the day it was returnable, and that he returned it without service two days after, and for the reason that he received it “at 10 o’clock A. M., too late for service.” The order of September 10th, 1890, recognizes the “ rule” as still pending; and states that neither the appellant, nor her counsel, have responded or made return to it, and that the court “ declines to hear defendant or counsel in any further steps until said matter of contempt is disposed of.” The next and only other order referring to the contempt matter is that of October 3rd, 1890, purporting to be made upon the cause coming on to be heard upon the petition of the complainant for a reference of the cause to take evidence in behalf of the complainant. This order, after reciting that the cause had been brought to an issue by the filing of the replication on July 7th, 1890, and that it .further appeared “to the court that on the 10th day of June, 1890, a rule was granted against the defendant, Electa E. Palmer, to show cause why she should not be considered in contempt of the court for the violation of certain orders issued herein, to which rule the said defendant being considered to stand in contempt of the court in the premises,” orders and ad
We cannot regard the recital in the order of October 3rd as an adjudication of the court in the contempt proceedings; it is a recital of contempt proceedings. The contempt proceedings were not then before the Judge for his action. What the order adjudges is a reference to take testimony in behalf of the complainant. It adjudges nothing else, and that part of the order preceding the real adjudication is composed of recitals of what the judge assumed to exist at the time, and to justify 'the reference, and the recital in question is nothing more than a statement of what the judge assumed to be the legal effect of the contempt proceedings as they then stood; or, in other words, that they, in their then status, showed her to be in contempt. This was a mistake; he had declined to hear her or her counsel further in any other matter in the cause until the contempt proceedings should be disposed of, but had made no adjudication in that proceeding. This refusal to further hear her or her counsel was, like the recital under consideration, not in the contempt proceeding. There had been no adjudication on the rule to show cause. There had been no attempt
If -we thought the recital in the record of October 3rd had been intended as an adjudication in the con
There is nothing in the case of Caro vs. Maxwell, 20 Fla., 17, that is inconsistent with this conclusion. It decides that an appeal does not lie from an order or judgment imposing a fine for contempt, and that a mandamus will not be granted to compel the approval of an appeal bond in such a case. We may remark that where the judgment is void as for want of jurisdiction of the court, the remedy is by habeas corpus, and where it is merely irregular or erroneous, there is no appeal or other right of review. Church on Habeas Corpus, Chapter 23. Judgments for contempt cannot be reviewed by appeal or writ of error for mere irregularity or error; they can be assailed only for illegality, and this, it seems, must be by habeas corpus.
The case of Woodson vs. State, 19 Fla., 549, is one in which a person under sentence for a criminal offense had brought his cause to this court by writ of error, and pending such writ he broke jail, andtheAttorneyG-eneral presenting proper evidence that he was still at large, moved this court that the writ should be dismissed on a certain day in the future unless Woodson should by that time surrender himself to the custody of the law. It was ordered accordingly, and Woodson failing
The distinction between the two cases last cited and the one before us is evident. Both of these were applications to the appellate court to exercise the power of adjudging the appellant to be in contempt, upon proofs submitted to it as an original proposition and in each of them there was legal proof that the parties asking relief were in contempt. Here the only thing relied on as'the basis for our action is the contempt proceedings instituted in the Circuit Court by the appellee by petition verified, it is true, by his affidavit, but not prosecuted further than obtaining an order to show cause, and putting the same in the hands of the sheriff too late for service. There is moreover no proof here, like there was in Evans vs. Van Hall, 1 Clarke’s Chan., 10, that service of the rule could not be made, but it is evident from the record that service could have been made by leaving a copy for her at her last place of abode.
Without saying what would be the effect of an order upon proper proceedings, adjudging appellant to be in contempt, (Andrew vs. Knox County, 70 Ill., 65,) it is clear that there is nothing of the kind before us.
We appreciate the duty we owe to the administration of justice to visit promptly and fully upon all persons the legal consequences of their placing themselves in contempt of any court whose orders we may have to re
The motion is denied.