Baker v. Cordon

Smith, C. J., áfter stating the facts. It is quite manifest the injunction contemplated (and such is a fair interpreta *119 tion of the words in which its extent is expressed) the defendant’s personal disconnection with the drug business in the town, and the securing to the plaintiff the full measure of the expected fruits of his father’s contract. Under the subsequent arrangement by which other proprietors are nominally substituted for himself, and he remains in possession of the assigned stock and continues to deal with it in all respects under the supervision of no superior, as before, for all practical objects contemplated in the order, and with the same injurious consequences to the plaintiff, the defendant is “ engaged in and carries on the business of selling drugs and medicines and preparing prescriptions,” in direct disregard of the commands of the writ. He still pursues his calling, from which he is required to desist, doing the very acts inhibited, and not the less so because in the form of an assumed agency for other absent owners. Full obedience to the mandate required his personal separation from the drug business, and that he should neither be instrumental in inducing others to embark in it, or carry it on himself within the prescribed limits. A less comprehensive meaning given to the terms of the order, and the exemption of the facts of the present case from the scope of its operation, would be to permit its essential and manifest purpose to be defeated, and render illusory the relief it professes to afford. After the first sale made with the understanding that the defendant would retire, and by refraining from competition leave to his successor the good will and patronage he had secured, upon the assumed existence of whiqh understanding the restraint is imposed, and but a few days after his non-succes3ful effort to have the injunction annulled, he transfers the very stock he was prohibited from using and disposing of in the occupation of a druggist, to two persons without knowledge or experience, and who exercise no controlling supervision in the management, and himself, with no perceptible change except in the name *120 of the proprietors, continues precisely as he had done, to deal in the articles and to fill prescriptions for those who might apply. Surely such acts might be deemed, notwithstanding a valid assignment, evasive of the personal obligation imposed, and a violation of the restraining order.

We do not in thus holding say, nor do we suppose that the defendant could not have entered the drug store of another and acted in the subordinate character of clerk to the proprietor, without over-stepping the restraints of the order; but his action and direct agency in this transaction, with the obvious design that the business he was then engaged in should be still carried on by himself, though nominally for others, renders him amenable to the charge of disobeying the mandate of the court, and not the less so on account of the assumed agency.

The brief filed by defendant’s counsel points us to two alleged errors in the action of the court.

1. The defendant was entitled to a jury trial of the controverted facts: > The exception is untenable. The proceeding by attachment for violating an order of the court made in furtherance of a pending action, is necessarily summary and prompt, and to be effectual it must be so. The judge determines the facts and adjudges the contempt, and while he may avail himself of a jury and have their verdict upon a disputed and doubtful matter of fact, it is in his discretion to do so, or not.

State v. Yancey, 1 Car. L. Rep., 133 ;

State v. Woodfin, 5 Ired., 199 ;

Moye v. Cogdell, 66 N. C., 403 ;

Crow v. State, 24 Texas, 12 .

But if it were not so, it is sufficient in meeting the exception, to say, that a jury trial was not demanded and the judge proceeded to pass upon the case, if not with the consent, at least without objection from either party.

Isler v. Murphy, 71 N. C., 436 .

*121 2. The disavowal of the imputed intent purges the contempt and exonerates the defendant:

This objection rests upon a misapplication of the rule laid down and acted on in the matter of Moore and others, 63 N. C., 397 . That rule is confined to the “class of cases” in the language of the Chief Justice who delivers the opinion, “where the intention to injure constitutes the gravamen ” of the offence. The violation of a judicial mandate stands upon different ground, and the only inquiry is whether its requirements have been wilfully disregarded. If the act is intentional, and violates the order, the penalty is incurred whether an indignity to the court, or contempt of its authority, was or was not the motive for doing it. A party is not at liberty by a strained and narrow construction of the words, and a disregard of the obvious and essential requirements of the order, to evade the responsibility which attaches to his conduct. In an honest desire to know the meaning and to conform to its directions, a mistaken interpretation of doubtful language would be a defence to the charge, but when its language is plain and the attempt is made to escape the force and defeat the manifest purposes of the order, by indirection, the penalty must be enforced, or the court would be unable to perform many of its most important functions. Bat. Rev., ch. 24, § l,,par. 4. High on Injunction, § 852;

Fain v. Pain, 80 N. C., 322 .

There is no error, and this will be certified.

No error. Affirmed.