Summary
In Ex parte Summers, 27 N.C. 149, an officer had refused obedience to an order to return process in his hands, and accompanied his refusal with an insolent message to the court.
Summary of this case from Ex Parte McCownOpinion
(December Term, 1844.)
1. Though the law says that the officer who has arrested a person on a ca. sa. and taken bond for his appearance at court shall return the process and bond on or before the second day of the term, yet the court may, if they think proper, order him to return them on the first day.
2. The officer who refuses obedience to such an order, and sends a contemptuous message to the court when by their direction he is informed of it, may be fined by the court for a contempt.
3. Where a court imposes fine or imprisonment for a contempt, if the order does not state the facts constituting the contempt, and the court is not bound to set them out, no other tribunal can reverse their decision.
4. But if the court does state the facts upon which it proceeds, a revising tribunal may on a habeas corpus discharge the party if it appear plainly that the facts do not amount to a contempt.
APPEAL from IREDELL Fall Term, 1844; Manly, J.
No counsel in this Court.
Charles L. Summers applied for a writ of certiorari to bring up to the Superior Court of Iredell an order made by the county court fining him $50 for contempt, that it might be reconsidered and (150) reversed or set aside.
In the affidavit on which the application was made the party stated that the fine was imposed on Monday, the first day of the term in May, 1843, and a copy of the order is set forth as follows:
Theophilus Falls } v. } Ca. Sa. James Freeland. }
Charles Summers, the officer in this case, is fined the sum of $50 for a contempt of court and for failing to return the papers. Therefore, the said Summers prays an appeal to the Superior Court, which is refused by the court.
In his affidavit the party further states that he was a constable of Iredell, and that Theophilus Falls had put into his hands a capias ad satisfaciendum, issued by a justice of the peace in his favor against James Freeland, and that he had arrested Freeland and taken a bond from him, according to the statute for the relief of insolvent debtors, for his appearance at the country court at May Term, 1843. That on the first day of the term he was directed by Falls not to return the execution and bond on that day, as he expected to settle the matter with Freeland; that, shortly afterwards, the attorney of Freeland applied to him in court to return the process immediately, and that he refused to do so; but that he refused because he was not bound to make the return before the second day of the term, and with no intention to show any contempt or disobedience to the court, and without any knowledge that the court required him to make the return; that he then left the courthouse, and the fine was imposed as above. Notice having, by direction of the court, been given to the county officers, they opposed the application, and offered the affidavits of the crier of the court and of the justices who presided in the county court at the time, and others, which stated that after Summers refused to make a return as requested by Freeland's attorney, the latter informed the court of the request and refusal, and moved the court that he should be ruled to make a return, and that, with the view (151) of disposing of that motion, the court ordered Summers to be called into court, and the crier immediately called him aloud at the door of the courthouse, and that Summers was then standing within a few yards of the crier, but took no notice of the call, and that the crier, by direction of the court, went to Summers in the court yard and informed him that the court required him to come into court and return the said ca. sa, or give the reason for not doing so; that Summers replied, he would not return the papers nor go into court, and that the crier might tell the court that he knew his own business, and the court might do as it pleased; and that upon receiving that message the court imposed the fine for the insult offered to the court and the contempt of its authority. The Superior Court refused the motion on the part of Summers, but allowed him to appeal to this Court.
If this case be considered upon its merits, as disclosed in the affidavits, which, taken altogether, explain the case fully, the Court would be little inclined to help the applicant, unless compelled by clear and strict law. There is no doubt that every court must have power to control its officers by process of contempt, attachment, fine, and commitment. It is the peculiar duty of a court to the public and to every suitor to prevent the officers of the court from misbehavior in office to the prejudice of the citizen, the scandal of the administration of justice, and detracting from the character of the court. Attorneys of a court, clerks, sheriffs, and all officers having the returns of process to the court and the custody of prisoners under mesne or final process of the court, must of necessity be thus amenable to the summary control and punishment of the court; else the administration of the law would fail altogether at the option of subordinate ministerial officers, often not actuated by the best motives nor very capable judges of what is proper. The conduct of this person was such as to call for severe animadversion from the court. It was injurious to the suitor, (152) disrespectful and insolent, personally, to the gentlemen then on the bench, and grossly contemptuous to the court in its judicial capacity. It is true, indeed, that the act, Rev. Stat., ch. 48, sec. 7, allows until the second day of the term to return the ca. sa. and bond. It says: "It shall be the duty of all officers to return on or before the second day of the court." But that only means that he may postpone his return to the second day, unless required by the proper authority to make it earlier. He may make it on the first day, and, for sufficient reasons, the court may require him to make his return on that day. And there is no doubt that if a rule had been formally drawn up and served on this person, requiring him to show cause why he should not make a return immediately, and he had failed to appear, that an attachment or commitment would have been as regular a sentence as any court of justice could have passed. So far, then, as the court has any discretion to grant or withhold this extraordinary remedy by certiorari, it would be but leaving the party to the just consequence of his folly and default by refusing the writ; for, as we are now considering the case, although the party was not formally laid under a rule duly entered, yet substantially, and for all the purposes of answering this application, he must be regarded as having a full opportunity of showing cause, and that he refused through contumacy. But had there been no legal default, and admitting that this person might have insisted before the court on the delay of the return to the next day as his absolute right, yet the message to the court, in its terms and manner, and while he was within the verge of the court, was as offensive and disrespectful as it could be, and in itself justified the fine.
But, in truth, this is not, we think, the proper method of contesting the propriety or lawfulness of this order, if there be any such method. From the very nature of contempts, and in order that the punishment may be efficacious, the punishment must be immediate and peremptory, and not subject to suspension by appeal at the mere will of the offender, nor by any proceeding in the nature of an appeal. Suppose one to come into court and curse and abuse the judge on the bench. Or suppose a sheriff with a writ in his hand, in the presence of the court, (153) positively refuses to return it, so that the party's action will be discontinued. What would sentences for these contemps be worth if the culprit could supersede them by appeal, certiorari, or writ of error? Manifestly, nothing; and the authority of the court would really be contemptible if it could be thus eluded and prostrated. There is no instance, therefore, of the reexamination of an order committing or fining a person for a contempt, with the view of hearing the evidence and trying the question de novo, nor directly to reverse or quash an order of commitment, or imposing a fine for an intrinsic insufficiency. If there be such insufficiency upon the face of the order, the party has his remedy by habeas corpus, and by action against those who act on the order, either against his person or property.
We own, however, that we cannot hold out to this person much hope of redress in that way. It does not seem to us at present that this order can be impeached. It was, indeed, suggested that it might, because it does not sufficiently set out the facts on which the contempt arose; and it was supposed that an order is void in which a case of contempt is not made out by a statement of proper facts and finding of the contempt by the court upon those facts. But we do not hold such to be the law. The question has often arisen in England, and recently it has undergone in that country very elaborate, anxious, and learned discussion both in Parliament and in the courts; and it is now given up that the facts constituting the alleged contempt need not be stated. If, indeed, they be stated and be insufficient, that is, are such as manifestly cannot amount to a contempt, it seems properly agreed that it must be disregarded, and the party discharged from an unlawful imprisonment, as in Bushell's case, Vaugh., 135, where he was committed "for giving a verdict against full and clear evidence." Therefore, it befits every court which has a proper tenderness for the rights of the citizen and a due respect (154) to its own character, to state the facts explicitly, not suppressing those on which the person might be entitled to be discharged more than it would insert others which did not exist, for the sake of justifying the commitment. A court which knows its duty, and is not conscious of violating it, will ever be desirous of putting upon the record or in its process the truth of the case, especially as thereby a higher court may be able to enlarge a citizen illegally committed or fined. But if the commitment or fine be in a general form for a contempt, all other courts are bound by it, and the party can only free himself by purging the contempt before the court that has adjudged it. It is so laid down by Lord Ellenborough in Burdett v. Abbot, 14 East, 1, and by Justice Bayley. That case went to the House of Lords, 5 Dow., 199, and in reply to the question whether, if the court of common pleas had adjudged an act to be a contempt of court, and committed for it, stating the adjudication generally, the Court of King's Bench, on a habeas corpus setting forth the warrant, would discharge the prisoner because the facts and circumstances of the contempt were not stated, all the judges replied in the negative; and, in consequence of it, the judgment was affirmed unanimously. It is true, that case was upon a commitment by the House of Commons; but it was sustained expressly because it would have been valid if done by a court of record. The subject has since been most diligently considered and learnedly argued in Hobhouse, 3 B. and Ald., 420, in the cases which grew out of the recent contest between the courts and the House of Commons, of Stockdale v. Hansard, 9 Adol. and El., 1, and Sheriff of Middlesex, 11 Adol. and El., 273; and all the judges say, in a distinct manner, that if a warrant merely state a contempt in general terms, it is conclusive, and that another court cannot go into the question of contempt on affidavit, nor discuss the motives which may be alleged for suppressing the facts. If, then, a court has competent authority to adjudge a contempt, the adjudication stands of itself, (155) and the grounds of it need not be stated, though certainly, in fairness, and to prevent the imprisonment of a citizen, it may be, upon an unjust or frivolous pretense, the court ought to state them.
In the case before us the order is loosely expressed, but is, we think, sufficient. If the failing to return the execution be the ground for the alleged contempt, it is not an absurd or inadequate ground. A contempt may be committed by such an omission or refusal, and we do not see the particulars on the order to show that it was not in fact a contempt. But if that is not to be taken as the ground of the adjudication, because it is not shown how it became a contempt, then there is no ground stated, but merely the contempt in general terms is found, and that binds. In every point of view, therefore, the decision in the Superior Court was right, and must be
PER CURIAM. Affirmed.
Cited: Cuthbertson v. Long, 49 N.C. 450; Robins v. Ex parte, 63 N.C. 312; S. v. Queen, 91 N.C. 662; In re Deaton, 105 N.C. 62; In re Briggs, 135 N.C. 129, 142; Ex parte McCown, 139 N.C. 104.