State v. Cutler, 13 Kan. 131

State v. Cutler

13 Kan. 131 | Kan. | 1874

The opinion of the court was delivered by

Valentine, J.:

1. Jurisdiction of judge at chambers. The defendant Abram Cutler was charged with violating an order of injunction. The injunction was granted by the judge of the district court at chambers, and the trial was had before said judge at chambers. . , , , . The first question, raised m this case is, with regard to the jurisdiction of the said district judge to hear and determine said charge. The constitution of this state provides that “The several justices and judges of the courts of record in this state shall have such jurisdiction at chambers as may be provided by law.” (Const., art. 3, § 16.) The law provides that the several judges of the district court may at chambers grant injunctions; (Gen. Stat., 675, §239;) and the law also provides that the several judges of the district courts may at chambers punish as for a contempt any person for disobedience of an injunction order. (Gen. Stat., 676, §247; id., 304, §2.)

2. contempts-(not triable by jury.) But it is claimed that the trial should have been by jury. Now, in the first place, the defendant did not ask for a jury; and he made no objection and took no exception , . . n . _ to the action of the judge in trying the case without a jury; and secondly, we hardly think that the constitution or laws ever contemplated that a jury should be impanneled in a case like this. It is true, that this kind of a proceeding is in the nature of a criminal prosecution, and perhaps might come within the words of § 10 of the Bill of Rights, and § 197 of the code of criminal procedure; but still it can hardly be possible that it was ever intended that a case like this, or any case for contempt, should be tried by a jury. Such a thing *135has never been done that we are aware of. We have never heard or read of a judge impanneling a jury to try a proceeding at chambers; and it was never the right of a party to demand a jury to. try a charge for disobedience to an injunction order. If a party has a right to demand a jury in this case, then every trial for contempt must be by jury, if a jury should be demanded. We do not now however choose to decide that a defendant in a case like this is not entitled to a jury if he should demand it; for the defendant in this case did not demand a jury. All that we now decide is, that the judge under the facts and circumstances of this particular case did not err in trying the case himself and without a jury. The proceeding was regularly tried under § 247 of the code of civil procedure. (Gen. Stat., 676.)

3. Party-corporation-officers. The injunction was allowed and issued against the Republican, Salina & Arkansas Valley Railway Co., “its assigns, its agents, its employes, and any one acting by its authority or in its behalf,” and not against Abram Cutler by name. In fact, he was not a party to the suit when the injunction was granted. But afterward he became a party thereto on his own motion, and was a party to the suit at the time of the alleged breach of said injunction order. Evidence was introduced showing that he owned a majority of the stock in said railway company, that he was president of. the company, that he had leased the road from the company" for ninety-nine years, that he had and was to have the full control and management of the same for that period of time, and that he “ was to survey and locate the line of road of the said R., S. & A. V. Rly., and obtain the right of way and depot grounds of and for said railway in the name of the Republican, Salina & Arkansas Valley Railway Company, but under his own full direction and control, and at his own expense.” The injunction was granted to restrain the railway company, its assigns, etc., from constructing its road into or through the farm of Catherine Warry. The road was afterward so constructed, and we think the evidence shows that it was so constructed with the *136approbation, the approval, and even by order and under the direction of the defendant. The evidence also shows that the defendant had notice of the injunction. The question now arising is, whether the defendant under these facts can be held guilty of a violation of said injunction, the injunction not having been issued against him personally. We think it can. Persons may often be held liable for the breach of an injunction although not personally named in the injunction, nor even parties to the suit. (Thompson on Provisional Remedies, 331; High on Injunctions, §§ 859, 863, and see cases cited in brief for The State, in this case.)

The proceeding for the violation of an injunction is a summary proceeding, and the charge may be tried upon the original affidavit filed in such proceeding, and not upon any formal pleadings. (Civil Code, § 247.)

The “illegal testimony” complained of by defendant ÍS' not very specifically pointed out; and we have failed to discover any illegal testimony, duly excepted to, prejudicial to the defendant. We think there is sufficient evidence to sustain the finding of the judge of the court below.

There may be some other questions in this case not raised by counsel’s briefs, but we do not wish to be understood as deciding anything not specifically mentioned in this opinion.

The judgment of the judge of the court below is affirmed.

All the Justices concurring.