73 S.E. 799 | N.C. | 1912
This is a proceeding for contempt. Respondents were attached for contempt, convicted and fined $250 each for disobeying an injunction order of the court.
The complaint alleges ownership by plaintiffs of two tracts (271) of land, known as Lots Nos. 1 and 4 in the division of New Lebanon. It is conceded that the defendant owns lots designated as Nos. 2 and 3 in the division, and upon the complaint, used as an affidavit,Judge Whedbee restrained defendant, its servants, agents, and employees, from going upon the land described in the complaint, for any purpose. It was further ordered that the defendant appear before JudgeWard and show cause why the restraining order should not be continued.
At the hearing the injunction was modified by Judge Ward as follows: "It is ordered that the temporary restraining order heretofore granted be changed and modified so that the defendant, its servants and agents, may continue the use and operation of its logging railroad as now located over and upon the land described in the complaint, pending the hearing of this cause upon its merits; and said restraining order is vacated in so far as it prevents the use and operation of said railroad by the defendant. On motion of the plaintiff, it is ordered that the injunction heretofore granted as to the cutting and removal of the timber from the land described in the complaint be continued to the hearing, except that defendant may remove the logs cut and now lying upon the land." *228
It appears from the case that, upon application of the plaintiff, which was supported by affidavits to the effect that the respondents had violated the injunction order by cutting timber on the land in dispute, Judge Ward issued an order to the respondents to show cause, before Judge E. B. Cline, why they should not be attached for contempt. This order was served, and at the hearing Judge Cline found the facts, and among others that the respondents had cut timber on land claimed by the plaintiff, "being the land covered and protected by the former order of injunction; and, further, that they continued to cut the timber on said land after the order of JudgeWard had been served upon them."
Judge Cline, therefore, adjudged them in contempt, and imposed a fine of $250 upon each of them. Respondents excepted and appealed. It is apparent from the findings of Judge Cline that the respondents undertook, by themselves and without the acquiescence of the plaintiff or the sanction of the court, to convey and locate the lines of Tract No. 1, and upon their own location of the boundaries to cut timber within what his Honor designates in his findings as "disputed territory." There was a contest between the parties as to the location of the land, and the injunction was issued in order to preserve the status quo until the dispute could be settled. It cannot well be questioned that respondents knew that they were cutting timber on the land claimed by the plaintiff — that is, on the land in controversy. The plaintiff, in his complaint, alleged that he owned Lots 1 and 2 of the land known as New Lebanon, and that defendants had entered thereon and cut therefrom a large quantity of timber, and were still engaged in doing so. The land claimed by the plaintiff, if we stop at the complaint, is that described as the land upon which the defendant and its correspondent and superintendent, at that time, were cutting timber. They were restrained by the order of Judge Whedbee, from cutting any more on that land, and, by the modified order of JudgeWard, from cutting any timber from that land or removing any except that already cut.
In the affidavits of J. T. Ansell and J. J. Watson, it was alleged that they were still cutting timber at that place, and upon those affidavits,Judge Ward issued his second order, requiring them to show cause why they should not be attached for contempt for disobeying the order in the manner stated in said affidavits. Even after this warning, they continued to cut at the same place. In addition to this, Judge Cline has *229 found as facts that they proceeded arbitrarily to locate the line and then cut timber on Tract No. 1, as claimed by the plaintiff, and in disregard of the order forbidding them to do so. If such a proceeding should be permitted, the orders of the court could easily be set at naught and the rights of parties litigant greatly prejudiced.
This case is not unlike Davis v. Fiber Co.,
We have high authority for saying that a party enjoined must not do the prohibited thing, nor permit it to be done by his connivance, nor effect it by trick or evasion. He must do nothing, directly or indirectly, that will render the order ineffectual, either wholly or partially so. The order of the court must be obeyed implicitly, according to its spirit and in good faith. Rapalje on Contempt, sec. 40. The motive for violating the order is not considered in passing upon the question of contempt, and the respondent cannot purge himself by a disavowal of any wrong intent. It is the fact of his obedience that alone will be considered. Section 42. Baker v. Cordon,
Affirmed.
Cited: Lodge v. Gibbs,