Opinion by
The appellant was, after a hearing, adjudged by the *149 еourt below guilty of contempt of court, in refusing to serve process by the court issued. The hearing upon the rule was held before three judges of the eourt below; there is no doubt that the court was properly organized and the defendant wаs present at the hearing and represented by able counsel. The court, аfter a hearing, adjudged the defendants, Jim Reap and John McLane, “guilty of contеmpt of court for their wilful disobedience of the orders of the court and their defiant refusal to execute the orders of the court, which disobedience and refusal were in contravention of the court’s authority and tended to and did obstruсt, frustrate and impede the due administration of justice and constituted a grave contempt of the authority and dignity of this court”; and sentenced Jim Reap to pаy ia¡ fine of $500, and to stand committed until the sentence is complied with. This sentencе was imposed on December 12,1925, and on the same day Reap paid the finе, and thus purged himself of the contempt. On December 16, 1925, Reap took this apрeal.
It appears of record and this court was advised by counsel at bаr, that the appellant had purged himself of the contempt four days before the appeal in this case was taken. This would seem to be an end of the рroceeding. It is contended on behalf of the appellant, however, that the payment of the fine was not voluntary and in support of this contention cаses are cited in which the defendant was under unlawful duress of his person or proрerty, as where the court had been without jurisdiction of the subject-matter; or had imposed a sentence not authorized by law; or had been in duress of his propеrty where a collector of customs was threatening a forfeiture of goods for non-payment of an alleged tax which the law did not impose, in all of which сases it was held that the payment of the fine or tax was made under protest; it could not
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be held to be voluntarily paid, the party paying having been compelled to rescue himself from such distress by payment of the money, and might afterwards recover it back. The money in those cases had been collected through an usurpation of power not conferred, not through the irregular exercise of a jurisdiction possessed. In the present case there can be no questiоn as to the jurisdiction of the court below. It had jurisdiction both of the subject-matter аnd of the person of the appellant, and to impose a fine upon а sheriff who defiantly refused to execute process to him directed, so long as the process was fair upon its face. When the court adjudged appеllant to be in contempt and imposed a fine, that was a final judgment, from which an appeal would at once lie without an allowance by the appellate court. The appellant was put to his election, he might either aрpeal, or pay the fine and thus end the whole matter. Such a case is entirely different from one in which the appellant pays a fine in order to be relеased from imprisonment which the court had, in no case, jurisdiction to impose. “The distinction is between the usurpation of a power not conferred, and the irregular or illegal exercise of a jurisdiction possessed”; Cunningham v. Mitchell,
The appeal is quashed.
A similar order was made in the appeal of John McLane, February T., 1926, No. 28.