Levan v. Richards

Jurisdiction — Abuse op Discretion — Appear.—When the district court in contempt proceedings keeps within its jurisdiction, and there is no abuse of the discretion vested in said court, there is no appeal. Nor will a writ of review lie in such ease. Writ op Review — Punishment por Contempt.- — -When, however, the district court exceeds its jurisdiction, the ease may be brought to this court by writ of review. Section 5164 of the Revised Statutes of Idaho prescribes the punishment that may be inflicted by the court upon the person guilty of contempt and must be held to be a limitation of the power of the court, to punish the person so found guilty, and must also be held to be a negation of all other modes of punishment. (Syllabus by- the court.)

Original proceeding by writ of review. In so far as the judgment purports to find D. B. Levan guilty of contempt and to assess a fine against him in the sum of $25 no complaint is laid, but we contend that that portion of the judgment purporting to assess damages to the sum of $298.25 is wholly void and that the court had no jurisdiction to render any such judgynent. In other words, that the sole power of the court in contempt proceedings is defined by our statute and is limited to a fine and imprisonment. This portion of the judgment being void, and being, as we contend, in •excess of the court’s jurisdiction, the proper way to review the -contempt proceeding is by writ of review or certiorari. (State v. Fourth Judicial Dist., 13 Mont. 34-7, 34 Pac. 39; In re Shortridge, 99 Cal. 526, 34 Pae. 227; State v. Reed, 3 Idaho, 554, 32 Pac. 202; Curtis v. Richards, 4 Idaho, 434, 40 Pac. •57; In re MacKnight, 11 Mont. 126, 28 Am. St. Rep. 451, 27 Pac. 336; Barry v. Superior Court, 91 Cal. 486, 27 Pae. 763; Cooper v. People, 13 Colo. 337, 373, 22 Pac. 790.) A writ of review will lie when there has been an excess of jurisdiction. (People v. Johnson, 30 Cal. 98; Hybernia v. Superior Court, ■56 Cal. 265; California Ry. Co. v. Central Pao. Ry. Co., 47 Cal. 628.) When the court renders judgment for a larger-amount, or in excess of its jurisdiction, it will be set aside upon a writ of review. (Will v. Sinkwibz, 39 Cal. 570; In re Warring, 50 Cal. 30; Sargeant v. Davis, 36 Cal. 552.) Section 5164 of the Revised Statutes of the state of Idaho is the source-of power in contempt proceedings. The statute in relation to-contempt is a limitation upon the power of the courts to punish for contempt. {Galland v. Galland, 44 Cal. 475, 13 Am. Rep-167; Ex parte Sweeney, 18 Nev. 74, 1 Pac. 379; Maxwell v. Rives, 11 Nev. 213; Boyd v. State, 19 Neb. 134, 26 N. W. 925;. Vanzandt v. Mining Go., 2 McCrary, 644, 48 Fed. 770; Cooley on Torts, 493.) The court has no power to impose a fine or assess damages in a contempt proceeding for the benefit of' another party, either as disbursements or counsel fees, unless, there is an express provision of the statute to that effeet{O’Rouke v. Cleveland, 49 N. J. Eq. 577, 31 Am. StRep. 719, 25 Atl. 367; Eads v. Brazelton, 22 Ark. 499,. 79 Am. Dec. 88; Ex parte Henshaw, 73 Cal. 486, 15-Pac. 110; Worden v. Searls, 121 D. S. 14, 7 Sup. Ct. Rep-814; Kirie v. Milwaukee Mfg. Go., 26 Fed. 501.) The punishment prescribed by statute is a negation of all other modes of punishment. {Ex parte Robinson, 19 Wall. 205; United States v.- A. T. & F. S. Go., 16 Fed. 863; Vanzandt v. Argentine Min.. Go., 2 McCrary, 642, 48 Fed. 770; Hawes on Jurisdiction of Courts, sec. 223.) This court is without jurisdiction to hear and determine the issue herein involved upon a writ of review, plaintiff having a, plain, speedy, and adequate remedy at law, by appeal, or writ of error. “The supreme court has jurisdiction to review all decisions of the district courts, or the judges thereof, upon appeal.” (Const., art. 5, see. 9.) “Where the record brought up-by writ of certiorari shows upon its face no final judgment has-been entered in the court below, and that the cause is still pending there, the writ will be quashed.” (2 Spelling’s Extraordinary Relief, sec. 1894.) We submit that the record in terms shows an order for judgment only, does not show a final judgment and does not show any entry of judgment. “A certiorari will not lie where an appeal is allowed.” (Nevada Cent. B. Co. v. District Court, 21 Nev, 409, 32 Pac. 673; 2 Spelling’s Extraordinary Relief, sec. 1937; State v. Huston, 40 La. 434, 4 South. 131; State v. Monroe, 41 La. 314, 6 South. 539.) The limitation of punishment to fine and imprisonment does not prevent those courts from requiring costs (including attorney fees necessarily incurred by the plaintiff, in overcoming the resistance. of the defendant in contempt proceedings) to be paid. (In re Childs, 22 Wall. 169; Wharton’s Criminal Pleading and Practice, sec. 972; United, States v. Patterson, 26 Eed. 509; Doubleday v. Sherman, 8 Blatchf. 45, Fed. Cas. No. 4020; Stimpson v. Putman, 41 Yt. 238.) It is within the power of the court to decree the payment of the legal expenses of the suit. Legal expenses may well be included in this provision and this includes the fees to attorneys. (Ex parte Perkins, 18 Cal. ■60, 64, 66.) Plaintiff contends that the source of power in contempt proceedings is Revised Statutes, section 5164. We would say that this is not the source of power in contempt proceedings; the power is inherent in the court. Section 5164 is a limitation upon the power of the courts to punish for contempt. (In re Robinson, 19 Wall. 205; Ex parte Sweeney, 18 Nev. 74-78, 1 Pac. 379; Gotland v. Gotland, 44 Cal. 475, 13 Am. Rep. 167; State v. Morrill, 16 Ark. 384; Johnson v. Superior Court, 63 Cal. 579; Ex parte Adams, 25 Miss. 883, 59 Am. Dec. 234; State v. Matthews, 37 N. H. 450-453; In re Shortridge, 99 Cal. 526, 37 Am. St. Rep. 78, 34 Pac. 229.) Writ of review by D. B. Levan against the third district court in and for Boise county (J. H. Richards, judge) and ■others. Judgment modified. The petitioner was cited to appear before the court for contempt in disobeying the order of the court. He pleaded not guilty. An investigation was thereupon had, and evidence taken, with the result that the petitioner was found guilty of contempt of court. It was further found that in committing said contempt the petitioner had stopped or delayed the survey of mining property which had been ordered by the court; that in so doing he had danjaged the party making the survey, namely, John Ranson et al., plaintiffs in the suit of John Ban-son et al. v. D. B. Levan et al., as follows, namely: Services of surveyor........................$ 20 Off Services of chainmen...................... 12 00' Services of flagmen......................... 7 00- For meals................................ 4 25 Services of two witnesses..................... 5 Off Fees of attorneys............................ 250 00- Total ................................ $298 25 The said district court thereupon proceeded to assess a fine of twenty-five dollars upon the petitioner, D. B. Levan, and entered the following judgment, to wit: “Now, therefore,.in consideration of the premises, it is ordered and adjudged by the court that the said defendant, D. B. Levan, be fined in the sum of twenty-five ($25) dollars penalty, and the costs and disbursements of plaintiffs above mentioned herein, amounting in the aggregate to the sum of two hundred ninety-eight dollars and twenty-five cents ($298.25); and it is hereby further ordered and adjudged! that the said defendant, D. B. Levan, deposit with the clerk of this court, within ten days from the date of this order, the said sum of twenty-five ($25) dollars fine, and the said sum of two-hundred ninety-eight dollars and twenty-five cents ($298.25) costs and disbursements, with the clerk as aforesaid, and this sum shall be paid over to the attorneys of record of the plaintiffs herein, on their demand; and in case said sums, respectively shall not be so deposited within ten days as aforesaid, the clerk of this court shall, without further direction, issue a special execution against the property of the said D. B. Levanfor the collection of the same, and that, in addition thereto, the the plaintiffs herein may make application to the court, or judge thereof, for an order upon said D. B. Levan to show cause why - he should not be punished for contempt in failing to make such deposit, which said judgment was signed and recorded as judgment of said court.” No findings of fact or conclusion of law were made. The defendant in said contempt proceedings presents the case to this court for review.