Williamson v. Pender., 37 S.E. 495

Williamson v. Pender.

37 S.E. 495 | N.C. | 1900

This is an appeal from a judgment in proceedings for contempt rendered upon the following state of facts, somewhat condensed from the findings made by the Judge. The defendants are W. R. Pender and his wife, Mary R. Pender. The summons was served on R. H. Pender, 9 June, 1899, but not upon his wife. R. L. Leatherwood, Esq., a practicing attorney in said court, and whom the Court finds to be solvent, however, entered a general appearance for both defendants, having been employed by the husband, and waived notice of the motion for appointment of a receiver. At the June Term of SWAIN, 1899, Judge Starbuck, after finding as facts the appearance of both defendants in the waiver by them of notice of motion for a receiver, and that they were insolvent, appointed W. A. Gibson receiver of the real estate in controversy. (487) Out of abundant caution, however, an alias summons was issued, 17 August, 1899, and served upon the feme defendant, 22 August, 1899. Said feme defendant also had actual notice of the appointment of the receiver theretofore made, and on 17 November, 1899, she caused notice to be *332 served upon the receiver (Gibson) to show cause at Fall Term, 1899, why he should not be removed from the receivership; but the motion was not brought by her to a hearing, and the defendants filed their answer in said action 4 December, 1899. At Spring Term, 1900, both defendants being represented by counsel, Judge McNEILL corrected and amended the former order appointing a receiver nunc pro tunc so as to read: "It is now, on motion of counsel for plaintiff, considered and ordered that W. A. Gibson be, and he is hereby, appointed receiver to take charge of the land and rents and profits described in the plaintiffs' complaint, and that he is authorized and empowered to enter upon the duties of such receiver upon entering into bond," etc. After the said order by Judge McNEILL, the receiver again demanded possession of said premises of the defendants (which had theretofore been refused), but the defendants again refused to surrender possession of said premises, or to pay rent, or to recognize or obey the order of the Court, though they were in possession of the land and receiving the rents and profits. Upon affidavit to that effect, filed before Judge Allen, 18 August, 1900, he issued notice to the defendants, which was duly served, to appear and show cause before him at Brevard, 12 September, 1900, why they should not be attached for contempt. Neither of the defendants appeared at the return day of the rule. The male defendant sent an answer, which the Judge found insufficient, evasive, and frivolous, and the feme defendant filed no answer at all. Thereupon (488) the Judge, finding the above facts, issued an order to the sheriff to arrest them, to be brought before him, at Waynesville, 20 September, 1900, to answer for the contempt of court. On that day the sheriff produced only the male defendant; whereupon the proceeding was continued for hearing at Webster, 3 October, 1900, and an alias order of arrest was issued for the feme defendant, and at that time and place, both defendants being present and heard, the Judge found the above facts, and, further, that the annual rental value of the land was at least $100, and that the defendants had been in continuous occupation of said premises, living in the dwelling house and using the other buildings, since the appointment of said receiver, and in receipt of all the rents and profits, except 31 1-4 bushels of corn paid by one of the tenants who had rented from the feme defendant for the year 1899. Upon these findings, the feme defendant was adjudged guilty of contempt of court, and fined $50, and taxed with the costs of the contempt proceedings. The Court further ordered the defendants to surrender immediate possession of the premises and the *333 crops to the receiver, and enjoined them, their aiders and abettors, from interfering with the possession of the premises. The Court committed thefeme defendant to jail (the male defendant having disclaimed any right in, or control over, the realty, which was the property of the wife) till payment of said $50 fine and costs in contempt, and till she should surrender the premises and comply with the order of the Court; with a proviso, however, that if she should forthwith pay to the receiver $100, or secure the same to be paid within 90 days, she might be allowed to remain in possession as tenant of the receiver, and take the rents for this year. The question as to liability for rents and profits for the year 1899 was reserved till the next term of court.

The facts are thus recited at some length, though not (489) altogether as full as set out in the record and in the findings of the Judge. It is almost incredible that this Court should be asked to hold that the appellants, were not guilty. They certainly have been very badly advised by some one.

If there was any error or irregularity in the appointment of a receiver, that could only be corrected by an appeal therefrom. In the meantime, such order would be valid and binding, and should be obeyed, unless suspended by the bond given on appeal. An erroneous or irregular judgment can not be tested by disobeying it. It is valid till reversed or set aside.

The only possible defense for disobedience of the order appointing a receiver, it not being appealed from, would be that the order is void for lack of service of process upon the feme defendant; but she has in the amplest manner been made a party to the proceedings, has had full notice of the orders of the Court, and has contemptuously disregarded them. The judgment of imprisonment till the order was complied with is valid.Delozier v. Bird, 123 N.C. 689.

Affirmed.

Cited: In re Parker, 144 N.C. 173. *334

(490)