Trullinger v. Howe

Feb 14, 1911
Reporters:
, ,
Before:
Bean
Mr. Justice Bean

delivered the opinion of the court.

1. In contempt proceedings, other than for a contempt committed in the presence of the court, Section 673, L. O. L., provides, “in cases other than those mentioned in Section 672, before any proceedings can be taken therein, the facts constituting the contempt must be shown by an affidavit”; While Section 675, L. O. L. provides:

*78“In the proceeding for a contempt, the State is the plaintiff. In ‍​‌​​‌‌‌‌​​‌‌‌‌‌‌‌​‌​​‌​​‌‌‌‌‌‌​‌​‌‌​‌‌​‌​‌‌​​​​​‌​​​‌​‌‌​​​​‌‌‌​​​​​‌​‌​‌‌​‌‌‌​‌‌‌‌​​‌‌​​​​​‌‌​‌‍all cases of public interest, the proceeding may be prosecuted by the district attorney, on behalf of the State, and in all cases where the proceeding is commenced upon the relation of a private party, such party shall be deemed a coplaintiff with the State.”

The apparent reason for this statutory requirement is that, when a decree has been rendered by a court of this State, the State is interested in the enforcement of its provisions, and in seeing that no person is prosecuted for contempt in disobeying such decree, except in a proper case. Contempt proceedings, if civil, as in the case at bar, should be instituted in the name of the State upon the relation of a private party. This defect could have been cured by amendment at any time before trial: State ex rel. v. Downing, 40 Or. 314 (58 Pac. 863: 66 Pac. 917). No attempt to ‍​‌​​‌‌‌‌​​‌‌‌‌‌‌‌​‌​​‌​​‌‌‌‌‌‌​‌​‌‌​‌‌​‌​‌‌​​​​​‌​​​‌​‌‌​​​​‌‌‌​​​​​‌​‌​‌‌​‌‌‌​‌‌‌‌​​‌‌​​​​​‌‌​‌‍amend, however, was made in this case.

2, Plaintiffs maintain, as a second ground of demurrer, that the affidavits are insufficient to give the court jurisdiction. The gist of the charging part of the affidavits of defendant is, “by reason of the failure of the plaintiffs to obey and conform to the decree aforesaid by abating and modifying the said dams so as to permit the passage of logs in natural stages of water in the said North Yam-hill Eiver, the defendant has sustained and is sustaining great loss and damage,” and that portion of the affidavit of Charles E. Demarest “that said Trullinger’s dam is more difficult to pass this season than last, because during the summer certain repairs and changes had been made, which have resulted in raising the center of the dam higher than the wings.” Considering both of these affidavits, it would appear ‍​‌​​‌‌‌‌​​‌‌‌‌‌‌‌​‌​​‌​​‌‌‌‌‌‌​‌​‌‌​‌‌​‌​‌‌​​​​​‌​​​‌​‌‌​​​​‌‌‌​​​​​‌​‌​‌‌​‌‌‌​‌‌‌‌​​‌‌​​​​​‌‌​‌‍that some changes had been made in the dam after the rendition of the decree, but there is no direct allegation that plaintiffs made the changes. From aught that appears in the affidavits they may have been made by defendant. And it nowhere *79appears whether there was an intentional violation of the decree, or whether the plaintiffs, in endeavoring to modify the dam so as to permit the floating of logs in accordance with the decree, failed in improving the conditions.

3. Before a party can be brought into contempt for not complying with an order or decree of court, service thereof must be made upon him, and a demand duly made that he comply therewith, unless it appear that he has personal knowledge or notice of such order or decree, and this must be shown by the affidavit upon which the proceedings are based: State ex rel. v. Downing, 40 Or. ‍​‌​​‌‌‌‌​​‌‌‌‌‌‌‌​‌​​‌​​‌‌‌‌‌‌​‌​‌‌​‌‌​‌​‌‌​​​​​‌​​​‌​‌‌​​​​‌‌‌​​​​​‌​‌​‌‌​‌‌‌​‌‌‌‌​​‌‌​​​​​‌‌​‌‍314, 325 (58 Pac. 863: 66 Pac. 917), and cases there cited.

4. The affidavit herein is defective, in that it makes no mention of either such service or knowledge of notice: State ex rel. v. Downing, 40 Or. 314, 325 (58 Pac. 863: 66 Pac. 917). In these particulars there is no compliance with Section 673, L. O. L.

5. Proceedings for the punishment of those accused of the violation of a decree are quasi criminal, and the statutory provision relating thereto must be strictly complied with: State ex rel. v. Sieber, 49 Or. 1, 4 (88 Pac. 313). We think the facts stated in the affidavits in this case insufficient to give the court jurisdiction to punish plaintiffs for contempt.

6. Plaintiffs also contend that the appeal from the decree in the original suit stayed the proceedings in the lower court, and thus divested that court of jurisdiction therein. The consideration of this question necessitates the examination of the undertaking ‍​‌​​‌‌‌‌​​‌‌‌‌‌‌‌​‌​​‌​​‌‌‌‌‌‌​‌​‌‌​‌‌​‌​‌‌​​​​​‌​​​‌​‌‌​​​​‌‌‌​​​​​‌​‌​‌‌​‌‌‌​‌‌‌‌​​‌‌​​​​​‌‌​‌‍on appeal in the original suit, which has not been made a matter of record in this proceeding, and this court therefore cannot take cognizance thereof. These views render it unnecessary to examine the other errors assigned.

The judgment of the lower court is accordingly reversed, and the case remanded, with instructions to sus*80tain the demurrer of plaintiffs, and for such further proceedings as may be deemed proper, not inconsistent with this opinion. Reversed.