State v. Stillwell, 157 P. 970

State v. Stillwell

157 P. 970 | Or. | 1916

Lead Opinion

Opinion by

Mr. Chief Justice Moore.

1. A party cannot legally be arrested for a contempt not committed in the presence of the court in failing to do something ordered by a court in a civil action to be performed for the benefit of the opposing party therein until he has been charged by an affidavit with a violation of such order: Section 673, L. O. L.; State v. Kaiser, 20 Or. 50 (23 Pac. 964, 8 L. R. A. 584).

2. Before a party’s freedom of action can be justly interfered with in a civil contempt proceeding, a copy of the order which it is asserted he has disobeyed must be served upon him and a demand for obedience made by the party or his agent who is authorized to require a compliance with the terms of such command. The purpose of serving a copy of the order is to avoid the necessity of arresting the party upon whom the obligation is enjoined by affording him a last opportunity to *615comply with the court’s direction before he is apprehended for his failure so to do; and the affidavit, charging the contempt must aver that the order has thus been served and the demand made. A failure in this respect renders the sworn statement as to the averment of facts insufficient to give the court jurisdiction of the subject matter: State ex rel. v. Downing, 40 Or. 309, 325 (58 Pac. 863, 66 Pac. 917). The affidavit herein does not contain such an allegation, nor does the answer admit that fact, but the latter asserts the court was powerless to hear and determine the proceedings.

3. In some jurisdictions a plea of “not guilty” puts in issue each averment in a charge of contempt. It would seem in such cases that a finding “guilty” by a court was sufficient to uphold a judgment of conviction based thereon. In this state it is the usual practice for the defendant in a charge of contempt to file an answer controverting the sworn statement contained in the affidavit by which the proceedings are instituted, or setting forth facts as excuses for noncompliance with the order. In such case the better practice would appear to require findings of fact to be made: Hoffman v. Hoffman, 26 S. D. 34 (127 N. W. 478, Ann. Cas. 1913A, 956, 30 L. R. A. (N. S.) 564). But, however this may be, in any event, if findings are attempted to be made, they should embrace every issue of fact, and be adequate to maintain the conclusion that was reached.

4. An examination of the findings hereinbefore set forth will not show the defendant was personally served in Oregon with a copy of the summons in the divorce suit as alleged in the reply.

“When publication is ordered, personal service of a copy of the summons and complaint out of the state shall be equivalent to publication and deposit in the postoffice”: (Section 57, L. O. L.).

*6165. The findings as made may refer to a personal service in California, where the defendant asserts he was living at the time the suit was instituted. A decree given upon such service would not affect the property rights of the defendant: McFarlane v. McFarlane, 43 Or. 477 (73 Pac. 203, 75 Pac. 139). Other statements in the determination appealed from are nothing more than conclusions of law. The findings are inadequate in these particulars.

As the affidavit did not state facts sufficient to confer jurisdiction, the judgment is reversed and the proceedings dismissed. Reversed and Dismissed.

Concurrence Opinion

Mr. Justice Harris

delivered the following opinion, concurring specially:

The affidavit must show either that a copy of the order has been served, or that the party has actual knowledge of the making of the order. In the instant case the affidavit does not allege that John R. Stillwell was served with a copy of the order, nor does it aver that he had actual knowledge of the making of the order, and consequently the affidavit is not sufficient: State ex rel. v. Downing, 40 Or. 309, 325 (58 Pac. 863, 66 Pac. 917); Trullinger v. Howe, 58 Or. 73, 79 (113 Pac. 4); 9 Cyc. 12.