1 Ark. 265 | Ark. | 1839
delivered the opinion of the Court:
On the motion of the plaintiff, a rule was made at the last term of this court, against Joseph J. Simmons, Clerk of (he Circuit Court of Conway County, to show cause at the present term, why he should not be attached for failing to make due return of the writ of error issued, and addressed to him in this case.
At the present term, said Simmons personally appeared, in obedience to said rule, and filed his affidavit, by way of showing cause against the rule, stating “ that he was clerk under the territorial government, and as such, made out and certified records to the Superior C°urt» and it was not then required, as he understood the law and practice, to attach the writ of error to the record, and he 'never knew before, that the law had been changed, and that the clerk was now required by law, to attach the writ of error by seal, to the transcript •of the record-; and that his omission to attach the writ of error, was not with a design to show contempt to the court or its authority, but from the fact that he was utterly ignorant that it was necessary or required,” and thereupon moved the court to discharge the rule.
Is this showing sufficient? The ninth section-of the act of1836,<£ to regulate the practice in the Supreme Court in appeals and writs of error incivil cases,” pamphlet laws, p. 131, provides that all’writs- of error shall be returned, signed by the-clerk of the court to which-such writ shall be addressed, under the seal thereof, and if any clerk shall fail to ¡ make due return of any writ to the Supreme Court, he shall be liable -to be.punished by such court on attachment for his contempt, in the ■same manner as officers of other courts, for disobeying the process or orders of such courts. In the present case, the writ of error had not the return of the'Clerk of the Circuit Court, signed by him and sealed with the seal of the court of which he was clerk, either ■ endorsed thereon or attached thereto, as required by- the provisions of the statute, and although such return may not have been required by the law or practice under the territorial government- of Arkansas, we think there cannot exist a reasonable doubt, -'that it is required by 'the above recited statute, and the failure-of the clerk to make such return, is in contemplation of the statute, a contempt of the law, and the process and authority of the court, for which the clerk is liable to be attached • and punished by this court.
’•Here ignorance of the lawis-the principal ground relied upon to discharge the rule, although in connection therewith, the clerk expressly disavows on oath, any “ design to show contempt to the-court or its authorises,” notwithstanding the maxim ignorantia legis non excusal, which applies as forcibly to acts done or omitted, which amount in legal contemplation to a contempt of the process and authority-of the court, as to acts committed or-omitted in violation of the criminal or civil laws of the land. It cannot, in eithercase amount to a-defence or justification.
In this case, facts amounting in law to a contempt being admitted, the respondent cannot avoid the legal consequence thereof by avowing simply that no contempt was thereby intended.
The practice on the subject not having been hitherto well'established, the court deem it proper thus definitely to settle the rule, that the officers subject to its Operation may understand distinctly the responsibility under which they act.
Wherefore it is the opinion of this court, that the cause shown by the respondent is not sufficient to discharge the rule, and the same must, therefore, be made,absolute.
