34 Mont. 258 | Mont. | 1906
delivered the opinion of tbe court.
On August 26, 1890, in a suit pending in tbe district court of tbe sixth judicial district of tbe state of Montana, in and for tbe county of Meagher, entitled “ John Dunlavey et al. v. James Grubb et al.,” after a trial there was made and entered a decree adjudicating and settling tbe rights of tbe parties, plaintiff and defendant, to tbe use of tbe water flowing in Confederate creek, in said county. It was therein adjudicated that John Dunlavey, tbe plaintiff, was entitled to the use of one hundred inches, statutory measurement, appropriated in March, 1866, and one hundred inches appropriated on May 1, 1866. It was also adjudicated that Walter R. Morgan was entitled to tbe use
On November 13, 1905, the plaintiff, John Dunlavey, filed in the district court of the ninth judicial district an affidavit setting forth, in substance, the following: That he is'familiar with Confederate creek in Broadwater county, Montana, and the various irrigation ditches leading therefrom, as well as with that certain decree finally determining the rights in and to the water of said creek, rendered August 26, 1890, in that certain cause in the district court of the sixth judicial district of Montana, in and for Meagher county, wherein John Dunlavey and others were plaintiffs and James Grubb and others were defendants; that by the terms of said decree the parties appearing therein, including Walter R. Morgan and A. Estes, were forever restrained and enjoined from interfering with the prior rights of any other party as fixed by said decree; that at all the times during the year 1905 Dora Pool was and since has been the sue
Upon the filing of this affidavit the Honorable W. R. C. Stewart, judge of the district court of the ninth judicial district in and for the county of Broadwater, issued a citation.' to Gf. E. Pool and J. D. Doggett, citing them to appear and show cause why they should not be adjudged in contempt and pnnished for the violation of the injunction contained in said decree. Pool and Doggett appeared in obedience to the order of citation, and thereupon, after hearing of the evidence, the court found both guilty of contempt, and on March 9, 1906, entered its judgment adjudging that.each should pay a fine of one hundred and fifty dollars, or, in default thereof, should be committed to jail until the fine be satisfied. Application was thereupon made to this court for a writ of review to annul the judgment of conviction. An order was issued directing the district court and its judge to show cause why the writ should not be allowed. On the day fixed for the hearing, the said court and judge objected to the allowance of the writ, on the ground that the affidavit does not state facts sufficient to make a case authorizing this court to issue the writ.
An incidental question presented by counsel for relators is whether, since the action was determined and the injunction issued by the district court of the sixth district, sitting in Meagher county, the district court of the ninth district, sitting in Broad-water county, has jurisdiction to enforce the decree, the latter county at the time of the rendition of the decree being included in part in the former while attached to the sixth district. This question seems hardly to deserve serious consideration.
The Act creating Broadwater county attached it to the ninth district for judicial purposes. If this provision means anything, it means that the court of the ninth district is clothed with jurisdiction for all purposes, so that it can do all that its predecessor might have done had no change been made. In order to meet the requirements of this changed condition, the
The legislature has power to create new counties, and, in doing so, to divide those already created. It also has power to change the judicial districts in the state. This impiies the power to provide for the preservation of liens and the efficacy of judgments theretofore rendered in the courts as the counties and districts were severally constituted at the time of their rendition. The fact that a county, or a part of it, may have been at one time included in one district and at another time in another, does not affect the validity of any judgment o’r the jurisdiction of the district court of the particular district. Especially so, when the purpose of the legislature is manifested by express provisions of law to prevent the very confusion and uncertainty which counsel insists must result from the division of one or more counties in the creation of a new one.
Now, contempts are criminal in their nature (State ex rel. Flynn v. District Court, 24 Mont. 33, 60 Pac. 493), and must be tried in the jurisdiction — that is, the county — where committed. If the contention of counsel should be sustained, the result would be that no decree rendered by the district court of the sixth district, for Meagher county, could be enforced by
The principal questions submitted for decision are two: First, whether the relators, not being parties to the action in which the rights to the use of the water of Confederate creek were adjudicated and the perpetual injunction was issued, and who are not named therein,' became subject to its provisions by becoming privies in estate to some of the parties defendant expressly included; and, if not, secondly, whether the other facts appearing in the affidavit filed in the contempt proceeding present a ease of willful interference with the operation of the decree after knowledge of its existence.
That the relators are privies in estate to Estes and Morgan is clear. (2 Bouvier’s Institutes, sec. 3102.) That, as such, they are estopped to deny or controvert Dunlavey’s superior right is equally clear, because they are identified with their predecessors in interest. (Id.; Code Civ. Proc., sec. 3196; Campbell v. Rankin, 2 Mont. 363; Hunt v. Haven, 52 N. H. 162; 1 Freeman, on Judgments, 2d ed., sec. 162.) In an action brought by Dunlavey, or by them, to settle the rights they or any of the other parties ’ claim, they would be, so far as now appears, estopped to controvert or question any of the rights already adjudicated.
Are the relators, then, bound by the injunctive feature of the decree 1 Generally speaking, an injunction operates only in personam and affects only the parties to the action. Therefore no one can be punished for contempt for a violation of it except parties having notice of it. To this general rule, however, there are several exceptions. As was said in Re Lennon, 166 U. S. 548, 17 Sup. Ct. 658, 41 L. Ed. 1110: “To render a person amenable to an injunction it is neither necessary that he should have been a party to the suit in which the injunction
In the ease of Ahlers v. Thomas, 24 Nev. 407, 77 Am. St. Rep. 820, 56 Pac. 93, the supreme court of Nevada recognizes another exception. In that case the contemnor became the grantee of one of the defendants after decree in an action brought to adjudicate the right to the use of water flowing in a certain stream. The decree was entered by default and embodied an injunctive feature restraining the defendants, their grantees, etc., from interfering with the plaintiff’s rights. It was held that the decree was binding as to the contemnor, and, though it is not so stated, the ground of the holding appears to have been solely that he was a grantee, the theory of the court evidently being that since the decree was binding as to the rights involved, its mandate directed to the defendants was also binding on the defendants’ grantees, whether they were mentioned therein or not. This exception is also recognized by the supreme court of Illinois in Safford v. People, 85 Ill. 558.
The same exception, slightly modified, seems to be recognized in the ease of Rigas v. Livingston, supra, in which the court uses this language: “It is true that persons not parties to the action may be bound by an injunction if they have knowledge of it, provided they are servants or agents of the defendants, or act in collusion or combination with them. * Authorities illustrating the rule might be cited to an indefinite extent, but the underlying principle in all cases of this class, on which is founded the power of the court to punish for the violation of its mandate persons not parties to the action, is that the parties
The last clause of this quotation implies that, where a third party asserts the right or claim of one of the parties to the injunction, he will be held to be bound by the terms of the injunction, The rule here stated excludes a privy who, with knowledge of the injunction, asserts rights under it. It is not necessary, then, to go to the extent of either of the cases of Ahlers v. Thomas or Safford v. People, supra, in order to reach the conclusion that the relators are not entitled to the writ prayed for herein.
For present purposes it may be conceded that mere privity in estate is not sufficient to warrant the holding that the party occupying the relation of a privy who was not a party to the suit at the time of the rendition of the judgment, must be held to obey the mandate of the injunction; for it is possible for a case to arise in which the privy has no knowledge whatever of the injunction. It does not seem that under such circumstances he should, upon principle, be punished; for while the grantee, if expressly mentioned, may well be held to be subject to the mandate, yet, if not mentioned, it is questionable whether he should be so held.
In the case of Ahlers v. Thomas the decree ran against the defendant and their grantees. Here the words of the decree include only the defendants. If the relators should be held to come within the mandate of the decree on the ground of their privity alone, the punishment inflicted would be for violating an order of which they might have had no knowledge, even presumptively, since the decree does not in terms include them.- • But it appears that the relators are not only privies by purchase from Estes and Morgan, but from time to time prior to the acts complained of as a violation of the injunction, they claimed the benefit of the decree by petitioning the court to appoint a water commissioner to administer the various rights adjudicated therein, under the Act of the legislature authorizing
The result is that the order to show cause must be set aside, and the application for the writ denied. It is so ordered.
Writ denied.