190 Ind. 124 | Ind. | 1920
— This is an appeal from a judgment imposing upon the appellant a fine for an alleged contempt of court in disobeying a restraining order against him, issued at the suit of the appellee Sefton. Said appellee, the plaintiff in a civil action seeking an injunction, filed with the court his affidavit, entitled with the names of the plaintiff and defendant in that action, as set out below, charging that the appellant had done certain acts in violation of the restraining order,- and upon a hearing the court adjudged appellant guilty, and entered in its order book a finding and judgment under the title and number of the civil action, “Frank H. Sefton vs. Robert F. Ramer, No. 9506.”
The judgment was that appellant be fined $500 and costs, and committed to prison until the fine and costs are paid. But he was released on bail pending the ruling on a motion for a new trial and this appeal.
The evidence tending to sustain the finding and judgment of the court that appellant was guilty of the offense charged was substantially as follows: On Monday, January 7, 1919, a complaint, duly verified, was filed in the Decatur Circuit Court, alleging that the appellant was the owner of a quarter section, containing 160 acres of land lying west of .the Fort Wayne Pike, and separated by it from the farm owned by the plaintiff in that action (Frank H. Sefton) on which he lived; that on the day before the appellant had caused and permitted to be erected on appellant’s said farm a small building within fifty rods from the residence of the plaintiff and the Fort Wayne Pike, and not far from certain tenant houses on plaintiff’s farm, and was threatening to and would store and permit to be stored
At the conclusion of the hearing appellant answered questions as follows: “Q. Now is it your intention to. permit those people or anybody else to go in from the road there? A. Certainly. Q. You don’t intend to try to keep them out? A. No. Q. And you propose to let Ira Bird take nitroglycerine there ? And you are not going to object? A. Well, they rented the farm. Q. And if they would drive in there today with a load of nitroglycerine you would make no objection? A. I would make no objection.”
Appellant added that he was advised that, having rented the place, he would have no right to make any objections, or to interfere with the company and its agents going in there.
We think that the jurisdiction of the court to punish for an indirect contempt of its authority in disobeying - the restraining order was properly invoked by filing the affidavit of the plaintiff in the case in which the restraining order was entered. §1047 Burns 1914, §1012 R. S. 1881. And the mere fact that the papers filed and the entry of judgment were certified as of that case, and not as of a case of the State of Indiana against appellant, was not an irregularity by which the appellant was in any way prejudiced.
The principal contention, of the appellant is that, since he had given the American Glycerine Company a verbal promise, on December 30, 1918, to execute a lease such as was thereafter executed, as soon as Mr. Lippert came, and it had put its storage house on the farm pursuant to that agreement, it had the right to
Whether or not the court might have been justified in concluding from the evidence that the American Glycerine Company acquired some rights of possession as against the appellant by taking possession to the extent that it did, and locating a storage house on the farm, under the verbal agreement with appellant, we do not find it necessary to decide. The company is not a party to this appeal.
It is obvious that the verbal agreement for a lease, with the privilage of renewal for -fifteen years, was void. 1 R. S. 1852 p. 291, §1, last clause; §4904 R. S. 1881, §7462 Burns 1914; Hand v. Hall (Eng. 1877), L. R. 2 Ex. Div. 318; Hand v. Osgood (1895), 107 Mich. 55, 65 N. W. 867, 61 Am. St. 312, 30 L. R. A. 379; Rosen v. Rose (1895), 13 Misc. Rep. 565, 34 N. Y. Supp. 467; Donovan v. Brewing Co. (1902), 92 Mo. App. 341, 344; 2 Reed, Statute of Frauds §800; 20 Cyc 214.
But whatever right to the use and occupation of the storage house the company may or may not have acquired for a limited time, as against the appellant, the evidence and the inferences which might legitimately be drawn therefrom fully justified the trial court in deciding, as it did, that appellant had violated both the spirit and letter of the restraining order. As against appellant, the court had adjudged that the storage of explosives there constituted a nuisance. If it did, the American Glycerine Company could have no lawful right to store them there, even under a valid lease. And the agreement to lease the land could not have afforded any justification for the appellant if he had gone to the stor
Taking into consideration the relationship between the appellant and the agent of the American Glycerine Company, and the activity of appellant in behalf of that company, and the inferences which might reasonably be drawn from the facts proved, there is sufficient evidence to sustain the finding of the court that appellant was guilty as charged. The maximum penalty which the court might have imposed, pursuant to such finding, would have been a fine of $500,
In view of all the evidence, we do not think the trial court abused its judicial discretion in fixing the amount of the punishment.
The judgment is affirmed.