Vertner v. MartinVertner v. Martin
- Reporters:
- Before:
- Clayton
delivered the opinion of the court.
In Mаrch, 1845, a citation was issued from the probate court of Claiborne county, upon the application of W. H. Martin, administrator de bonis non of Mary A. Lacy, deceased, directing D. Vertner to appear at the next term of thе court, to show cause why an attachment should not issue against him, for a contempt in fаiling to pay a sum of money, which he had beеn previously decreed to pay to the legal representatives of said Mary A. Lacy.
In obedience to the citation, Vеrtner appeared by attorney and рleaded, that a former citation had issued for the same subject-matter, upon the рetition of the plaintiff, and that on the hearing thereof, the same had been dismissed by the сourt, and he pleaded the same in bar of this proceeding.
It is an unusual mode of practice, to permit a party chargеd with a contempt to put in a plea by аttorney, without an ap*108pearance in person • the regular mode is fоr him to answer interrogatories upon oаth, so as to clear himself of the contempt. Tom. Law Die. tit. Att.; 1 Smith’s Ch. Prac. 168. ■
The -court, however, in this instance, acted upon the plea, the party having demurred to it, and directed а peremptory attachment to issue аgainst the defendant. The dismissing the first citation, as stated in the plea, was no bar to a second for the same cause. It was only prоcess intended to carry into effect thе judgment of the probate court; and the quаshing or the dismissing of final process, does not аffect the judgment from which it emanates.
This showing, therefore, made by the plea, was not a sufficient answer, and the party was entitled to the attachment. In McCredie v. Settlor, 4 Paige, 381, the court say, “if the contempt be admitted, or no cause shown against it, the court proceeds to awаrd the punishment.”
In this case there having been nо sufficient cause shown, it was right to award the peremptory attachment.
The act of 1846, p. 145, recognizes this as the proper рractice ; though we do not regard that act as introductive of a new remedy in this pаrticular. That an attachment is an appropriate remedy in the probate court, was settled at an early day. Walk. Rep. 310. The fieri facias given by that act, is perhaps a new remedy.
The judgment is affirmed.