86 N.W. 742 | N.D. | 1901
In this proceeding the trial court found that the defendant was guilty of a contempt of court, in this: that the defendant had disregarded and otherwise violated a certain judgment entered in said court in the above entitled action. The proceeding was initiated by an order of the District Court, based upon two affidavits, directing the defendant to show cause on November 7, 1900, before said court, why the defendant “should not be adjudged guilty of contempt, and punished therefor accordingly.” The order, with the affidavits, was served upon the defendant; and on the return day named in the order the defendant filed three affidavits with the clerk of the District Court, which the defendant relied upon as a basis for an application to said court to call in another judge to preside in the case. The matter came on to be heard before the District Court on November 8, 1900, counsel for both sides appearing. The record shows that counsel for the plaintiff stated that he appeared in support of an application for an attachment for contempt. The defendant’s counsel stated that his appearance in the case was special, and that he claimed that the court could not then proceed to hear the application for an attachment, for the reason that the affidavits filed the previous day set out a state of facts which required the calling in of an outside judge to determine the issues presented. Counsel claimed that he was entitled to have another judge called, under either § 5454a or § 8120 of the Rev. Codes of 1899. This contention of defendant’s counsel was overruled, whereupon the court postponed the further hearing of the matter until November 12, 1900. We are clear that the defendant was not entitled to have an outside judge called in to hear this proceeding. The sections of the Code relied upon by defendant, and above cited, have reference either to a civil or criminal action proper, and this
The matter came on to be heard upon the merits on November 12th, at which time the parties were represented by counsel. The defendant filed certain affidavits in opposition to the affidavits filed in support of the motion, and the moving party then introduced ■certain oral testimony in rebuttal, whereupon the trial court entered its final order in the matter, from which the defendant has appealed to this court. Said order, so far as the same is material, is as follows: “'The court finds that the said defendant, Ole T. Aasen, in violation of the terms of the judgment, planted trees and constructed an embankment of manure, straw, and earth below the ■culvert across the swale or water course mentioned in said judgment, thereby obstructing said water course. It is therefore ordered that said Ole T. Aasen; defendant, be, and he is hereby, adjudged guilty ■of contempt of this court, and that he pay to the plaintff a fine of one hundred and fifty dollars (which includes the cost); and in default of such payment said defendant will be committed to the jail of Cass county, and there be confined until discharged according to law. It is further ordered that said defendant forthwith remove the obstruction placed in said water course on his land, and restore the same, .as near as possible, to its natural condition. Let judgment be entered accordingly.” To this order an exception was saved. A statement of the case was settled, which embodies all the affidavits and evidence upon which said final order was made; and the statement also embraces exceptions to the findings of fact upon which the conviction is predicated, and also specifies a list of alleged errors ■of law. The statement contains no demand for a trial anew in this court either of the entire case or of any fact in the case.
Upon this record it is contended here that this court is without .authority either to try the entire case anew, or any issue of fact in the case; and the further contention is made that, on account of an alleged insufficiency of the specifications in the statement, this court cannot, under the statute, proceed to inquire whether the findings of facts are justified by the evidence. These contentions of counsel present important questions of procedure, which have never before been passed upon by this court in a contempt case; and, with a view of settling the practice in such cases, it becomes necessary to put
We remark first that in the absence of legislation it is very difficult to determine upon authority 'precisely what matters may be considered by a court of review in passing upon a conviction for contempt of court committed in an inferior tribunal. See 4 Enc. PL & Prac. p. 809. In the light of this conflict of authority, we may safely say that the. section of the Rev. Codes above quoted was primarily intended to settle the question in this state, and that the same is disposed of by the declaration that “upon such appeal the Supreme Court may review all the proceedings had and affidavits and other proofs introduced by or against the accused.” But in what form are the evidence and the procedure had and taken in the court below to be presented to this court?. The statute furnishes an answer. It declares: “For the purposes of reviewing questions as to the sufficiency of the evidence a statement of the case may be prepared and settled within the time and in the manner provided in Article 8 of Chap. 10 of this Code.” The article referred to defines a statement of the case, and prescribes the time and manner of its preparation, and includes a careful enumeration of the elements entering into the same. A statement may contain the whole evidence, or a part thereof. It may embrace specification of errors of law, or of particulars in which the evidence is insufficient to justify findings of fact. In brief, the article referred to in § 5954 is pointed out as the particular law which governs the preparation of a statement in all contempt cases arising under Chap. 33, Code of Civ. Proc., in which the appellant desires the Supreme Court to review questions “as to the sufficiency of the evidence.” In such cases, therefore, where a review of the evidence is sought, the statement must specify “the particulars in which the evidence is alleged to be insufficient to justify the decision.” Section 5630 does not apply in contempt cases. This is obvious, first, from the fact that a contempt matter, whether civil or criminal, is not an action, in the proper sense of that term; neither is it a proceeding in which an issue of fact is necessarily joined, although such issues may be joined in a contempt case. Nor is there any language in the statute regulating the procedure in contempt cases which directs this court to retry any issue of fact anew. This court has frequently held, in construing § 5630, supra, that it derives its authority to sit as a trial court solely from that section, and that it will refuse to try any case anew which does
Reverting to the record, the fact is developed that no interrogatories were ever filed in this case as prescribed by § 5942 of the Rev. Codes of 1895, and counsel for appellant strenuously contends that this omission is fatal to the conviction of the accused. Respondent's counsel combats this proposition by the argument that the ■omission to file interrogatories is a mere irregularity of procedure, .and that the same is entirely cured by the omission of the accused to ■demand that interrogatories be filed, and by his further neglect to take an exception in the court below based upon such omission. The record shows no demand for interrogatories, and no exception based upon the failure of the trial court to cause the same to be filed. Counsel for the respondent claims that the accused practically admitted the “offense charged,'' and hence, under § 5942, no interrogatories were required. But, in our opinion, the record effectually refutes this claim. The first affidavit filed by the accused (that relating to calling in another judge), contained the statement that the accused had read the affidavits which embraced the grounds of the ■charge, and then proceeded to sa)r that the accused “denies the same, and each and every part thereof”; and again, in the defendant's counter affidavit filed upon the merits at the commencement of the’trial, the accused averfe (referring to the affidavits of the plaintiff) “that he knows the contents of each and both of them, and that he denies the same, and each and every allegation and statement therein made and contained, except as herein specifically admitted.” It is true that this denial was qualified, and further true that the accused proceeded to set out his version of the facts and matters set out in plaintiff’s affidavits, and in so doing admitted or modified and explained some particular features of the charge against him. But he nowhere “admitted” the commission of the offense charged, but, on the contrary combatted the idea of his guilt with much vigor in the court below, and continues to do so in this court. There is no claim made that the defendant ever “admitted the offense charged,” in terms. The question, therefore, is this: Did the defendant, by failing to demand interrogatories or to take exceptions to the proceedings against him, upon the ground that none were filed, waive this irregularity in procedure ? Section 5942 is as follows : “When the accused is produced by virtue of a warrant, or appears upon.the return of a warrant, or of an order to show cause the court or judge must, unless the accused admits the offense charged, cause interrogatories to be filed,.specifying the facts and circumstances of the offense charged against him. The accused must make a written answer thereto under oath within such reasonable time as the court or judge allows therefor and either party may produce affidavits or
But in this new state where as yet no uniform practice has grown up in the trial courts, and where this court is unhampered by precedents of its own making, we deem it to be an imperative duty to place such construction upon the legislation in this state governing the procedure in contempt cases as will meet and carry out the manifest purpose of the lawmaker. Section 5942 deals with and disposes of many features of the procedure in this class of cases about which the courts of this country have not been in accord. Its language is unambiguous, and covers all cases arising under Chap. 34 of the Code of Civil Procedure. Nor does this section discriminate between cases where the accused is cited into court by an order to show cause, and those where a warrant of attachment is issued. In either case, “unless the accused admits the offense charged,” the court or judge must “cause interrogatories to be filed specifying the facts and circumstances of the offense charged.” This requirement of the statute is mandatory in form, and it devolves upon the judge presiding a definite duty. When interrogatories are filed, and not before then, the defendant is required to “make written answers thereto under oath,” and for this purpose he is allowed a reasonable time, to be fixed by the court. When issues are framed by filing answers to meet interrogatories, the statute declares that “either party may produce affidavits or other proof contradicting or corrob
But there is another feature of the case appearing in the record which in itself will require a reversal of the conviction. It appears distinctly upon the face of the order of conviction that this proceeding was regarded as. a civil contempt in the court below, and was not instituted primarily to vindicate the authority of the law or the dignity of the court. The theory of the prosecution is that the acts of the accused, as set out in the affidavits of the plaintiff, are such as are calculated to, and did, defeat, impair, impede, or prejudice the rights of the plaintiff, as the same are set forth in the judgment previously entered in the civil action out of which this proceeding has