delivered the opinion of the Court.
The affidavit of the relator sets forth that on July 17, 1899, a judgment was rendered against him in the district court iir and for the county of Beaverhead, finding him guilty of willful contempt of court, by reason of relator’s alleged violation of an order and decree of said court rendered on October 1, 1888, enjoining relatоr from interfering with the waters of the Blacktail Deer creek, in said county of Beaverhead, to which Peter Wilson and Thomas Wilson, the complaining witnesses in said contempt proceeding, were entitled under the terms of sаid decree of October 1, 1888.
The judgment rendered in the contempt proceeding is,, so far as material, аs follows: “And, after the introduction of testimony on behalf of plaintiffs and defendant, the court found the defendant, Thоmas Flynn, guilty of willful contempt, and fined him in the sum of five hundred dollars and the costs of the prosecution, and directed that judgment be entered against him for costs, which amounts to the sum of $304.40, and that execution issue against the said defendаnt, Thomas Flynn, for the same.
“Wherefore it is hereby ordered, adjudged and decreed that the plaintiffs, Peter Wilson аnd Thomas Wilson, do have and recover of and from the said defendant, Thomas .Flynn, the sum of three hundred four and 40-100 dollаrs, the costs necessarily and actually incurred by them in the prosecution of this action, and that executiоn issue therefor against the property of the said defendant. ’ ’
Execution was issued on said judgment at the instancе of said Wilsons, and levied on the property of relator, and the execution, with the sheriff’s return thereon, which has been filed in this court by way of supplemental return, shows that the property levied upon was sold to satisfy the judgmеnt for costs.
Section 2170 of the Code of Civil Procedure makes it a contempt of the authority of a cоurt to disobey any lawful
The statutes of contempt of court in Montana were taken from California, where they have been examined and passеd upon repeatedly. (Ex parte Gould,
When рrosecuted under the Code of Civil Procedure, a contempt of court is not to be regarded as a ‘ ‘criminal offense, ’ ’ to be prosecuted only by complaint, information or indictment, as laid down by Section 8, of Artiсle III, of the State Constitution, but, rather, as a special proceeding of a criminal character — in that sense it is a public offense, yet it is not
The proceeding in contеmpt is distinct from the action wherein the injunction violated was issued; vindication of the dignity of the authority of the court is the object to be attained by the matter, and not indemity for the plaintiff in the civil suit. J udgment cannot go in favor of thе plaintiff in the civil action had, unless authority to enter such a judgment exists by law. (In re Rhodes,
By Section 2910 of the Penal Code, all fines collected in any court, except police courts, must be applied to the payment of the costs of the case in which the fine is imposed, and after such costs are paid the residue must be paid to the county treasurer of the county in whiсh the court is held. This statute is applicable; hence it follows that the costs herein incurred must be paid from any fine imposed, and that that portion of the judgment wherein the Wilsons were awarded costs is invalid and of no effеct. (People ex rel. v. Court of Oyer and Terminer,
The court exhausted its power to impose pecuniary punishment upon relator when it fined him $500. The additiоn of §304.40 costs was in excess of the law, and as to such excess the judgment is void.
Our opinion is that the judgment imposing a fine for contempt was valid, but the judgment for costs is void, and that the acts and proceedings had and done thereunder must be annulled. It is so ordered.