211 P. 105 | Nev. | 1923
Lead Opinion
This is an original proceeding in prohibition to restrain the respondent court from inquiring into a charge of contempt. The petition alleges that on a given date the petitioners were cited to show cause why they should not be punished for contempt of court for a failure, neglect, and'refusal to comply with a judgment and decree thereof, a copy of which is attached to and made a part of the petition, as well as is a copy of the complaint in the suit in which the decree was rendered.
Omitting some preliminary and nonessential allegations in the petition, it is alleged:
“That thereupon relators herein filed their motion to quash and set aside said show-cause order and dismiss said proceeding, upon the grounds and for the reason that the affidavit upon which said show-cause order was based failed to state any facts sufficient to constitute a cause of action or a charge of contempt against relators, or either or any of them; that the court was without jurisdiction of the subject-matter or the persons of the defendants, for the reason that the judgment upon which said proceeding was based was void upon its face. And relators then and there moved to strike out and from the files the whole of said affidavit, upon the grounds and for the reason, that the said affidavit, and the whole thereof, was sham, frivolous, irrelevant, and immaterial, and contained no statement of any fact or facts which charged the commission of any contempt of court against the relators herein, or either or any of them. And relators further moved to strike out portions of said affidavit upon the grounds that such portions were sham, frivolous, and irrelevant.”
It is further alleged that the court, after a hearing upon said motions, refused to quash and set aside said contempt proceedings, or to strike any of the matter objected to, except certain minor and immaterial portions, and entered an order setting said contempt proceedings for hearing, and that the said court will proceed to hear the same, and will—
“without power, right, authority, or -jurisdiction so to*414 do, wrongfully adjudge these petitioners guilty of contempt of court, and will make and cause to be entered against these petitioners a void judgment which will subject petitioners to wrongful and illegal obligations and punishment as for contempt of court, and thus and by means thereof subject petitioners to a loss of property rights without due or any process of law, and subject petitioners to a void judgment depriving them of their liberty without due or any process of law.”
In support of the petition for the wirit, counsel urge two points: (1) That the affidavit upon which the show-cause order was sought and issued fails to state any facts showing any violation of that portion of the injunction embodied in the decree restraining the petitioners from future acts of trespass upon the property of the plaintiff in the suit in which the decree was entered; and (2) that the affidavit charging a violation of the mandatory portion of the injunction in said suit was insufficient to give the court jurisdiction to proceed, and, further, that the mandatory portion of the decree is void for want of power in the court to enter it.
As to the first point, it must be borne in mind that the suit out of which the contempt proceedings grew was one in which the plaintiff alleged that he was the owner of a tract of land of forty-two acres, across which an irrigation ditch ran, wihich served to conduct water owned and used by the defendants in the action (petitions here) to irrigate their lands, and that in the course of the enjoyment of such right they had entered upon the 42lacre tract, and, among other things, greatly enlarged said ditch and threatened, and, if unrestrained, would continue to enlarge the same, to the great damage of the owner.
Upon the trial of the case the court found the issues in favor of plaintiff and ordered a decree restraining the defendants from further enlarging the ditch, and commanding them to restore it to its original size and capacity. The affidavit for contempt charges, among other things:
*415 “That said defendants and each of them have continued to further enlarge said Sessions ditch within the limits of plaintiff’s ranch; that said defendants have wholly failed and neglected and have refused to restore that portion of said Sessions ditch, ordered restored to its former dimensions by the judgment and decree as aforesaid in this action.”
It is conceded by counsel for petitioners that the judgment in the water suit constitutes a basis sufficient to support the charge of contempt for a violation of the restraining portion of the injunctive relief granted in that matter. Let us see if the affidavit, wherein it is sought to charge such a violation of the injunction, is sufficient. It is said by counsel that the, mere statement in the affidavit “that defendants and each of them have continued to further enlarge said Sessions ditch within the limits of plaintiff’s ranch” is not a statement of fact, but a mere statement of a conclusion, and hence no jurisdiction is conferred upon the court to act. To sustain petitioners’ contention, reliance is had upon a portion of section 5396, Revised Laws of 1912, as amended (Stats. 1913, p. 117), reading as follows:
“When the contempt is not committed in the immediate view and presence of the court or judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators.”
Counsel for respondents direct our attention to the case of Strait v. Williams, 18 Nev. 430, 4 Pac. 1083, and contend that it is decisive of the point made by counsel for petitioners. Counsel for the petitioners, evidently appreciating the force of the contention, assuming that case to be in point, seek to distinguish it from the instant one, contending that it was a case on certiorari where the trial had already taken place and a j udgment entered, and that there was no chance to amend, whereas “in this proceeding the issue has not been determined. The sufficiency of the allegations of the affidavit is now being tested. Bottini may still have opportunity to
There is but one question left to be decided, and that is whether the district court had jurisdiction in the water suit, under the allegations of the complaint, to decree mandatory relief to the plaintiff. While courts of equity seem to have jurisdiction to issue mandatory injunctions when the allegations of the complaint and the facts justify it (14 R. C. L. 315; note to Murdock’s Case, 20 Am. Dec. 389), the allegations of the complaint in question do not warrant such relief. It is not contended that the damage done in enlarging the ditch could not be compensated in damages, or that the defendants were not able to respond to any judgment that might be rendered against them. On the other hand, the complaint proceeds on the theory that such damages could be compensated for. There is an allegation in the complaint as to the damage done in enlarging the ditch, and such damage is alleged to be in the sum of $3,000. It is true that the prayer of the complaint
It is clear that under the allegations of the complaint the plaintiff in that suit had an adequate remedy at law. This being true, the court had no jurisdiction to enter a decree for a mandatory injunction. Kerr’s Inj. in Eq. p. 51.
The alternative writ heretofore issued herein will be modified so as to permit respondent to proceed as to that portion charging contempt, except as to the mandatory provisions of the decree entered in the water suit, and as so modified it will be made permanent.
It is so ordered.
Rehearing
On Petition for Rehearing
Rehearing denied.