Young v. Cannon, 2 Utah 560

Young v. Cannon

2 Utah 560 | Utah | 1880

Huhteb, C. J.,

delivered tbe opinion of the court:

The plaintiffs, by their counsel, appeared in this court in opposition to said writ of certiorari, and moved to quash the same, upon the ground that this court has no jurisdiction to issue said .writ, or to hear or determine the proceedings herein on certiorari¡ that this court has no original jurisdiction, and no jurisdiction of this case..

Section 433, Compiled Laws, p. 521, provides: The writ of certioram, may be denominated the writ of review.

Section 434 provides: That this writ may be granted on application by any court of this Territory, except a justice’s or alderman’s or mayor’s court; the writ shall be granted in all cases where an inferior tribunal, board or officer exercising judicial functions has exceeded the jurisdiction of such tribunal, board or officer, and there is no appeal, nor in the judgment of the court any plain, speedy and adequate remedy.

A single question is raised in the case, namely: Did the Third District Court of the Territory of Utah exceed its jurisdiction, or did it have jurisdiction in the matter of the contempt?

Jurisdiction in contempt cases is derived by the court under the statutes of the Territory, and proceedings in contempt must be had in the manner therein provided. -

Section 459, Compiled Laws, page 527, provides: “"When the contempt is not committed in the immediate view and presence of the court or judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt.”

It is the opinion of the court that it is necessary in all proceedings for contempt in' this Territory, which are not committed in the presence of the court, in order to give the court jurisdiction, that an affidavit or affidavits be presented to the *594court stating the facts constituting the contempt. It will not do to state in the affidavit in general terms a conclusion of law, that the party has been guilty of a disobedience to -the order of the court, or be in such indefinite form as not to show a particular or a series of particular disobediences. It must state the particular act or acts of disobedience, and in such clear and unmistakable language that will give to the court knowledge in what particular or particulars its order has been disobeyed; that a demand has been formally made to obey the order in the particular set out in the affidavit, and that the •contemnor either refused and declined, or willfully, and still does, continue to disobey the order. Unless this particularity is observed in the affidavit, the court cannot become possessed of the facts constituting the contempt and showing that its order has been disobeyed, and the accused will not be informed of the act or charge to which he is called upon to answer. No man can be deprived of his liberty or have his property wrested from him without due process of law, and the court cannot derive that jurisdiction over the matter, which it is necessary for it to have to enforce its orders, without the law has been complied with strictly and in the manner pointed out by the statute.

The affidavits on which is based the proceedings in this case are not of that definite and positive character, such as, in the opinion of a majority of this court the statute requires, and as was necessary to give the said District Court jurisdiction. Nothing appears in either of the affidavits which gave the court to know that any specific items of property ordered to be turned over by the original order were, at the time of making the affidavits, still in the hands of the defendants or either of them, or that demand had been made for any specific item of property so in their hands, and that a refusal or declination was made on the demand, or that a willful and continued purpose to disobey was evinced by the defendants.

The order will, therefore, be that the proceedings in the Third Judicial District Court of the Territory of Utah, in the *595matter of the contempt of George Q. Cannon* Albert Carring-ton and Brigham Young, be reversed. •

Proceeding in habeas corpus having also been instituted, it was agreed by counsel for both parties that the finding of this court in the certiorari proceedings should determine the habeas corpus, it is further ordered that the said George Q.

Cannon, Albert Carrington and Brigham Young, be discharged.

EMERSON, J., concurred. Boreman, J., dissented.