Shattuck v. State

1. Contempts : Power to punish therefor. Power to punish for contempts is inherent in all courts, especially those of superior cognizance. This is essential to the preservation of order and the proper discharge of the judicial functions. 2. Same : Power of court to review for contempt. One court cannot review a contempt committed against another court, nor can a judge discharge a prisoner upon habeas corpus, committed for a contempt of another court. 3. Same: Same. Although jurisdiction does not belong to an appellate court to review a judgment for contempt, yet, if the contempt complained of was not committed in the presence of the court, but was for the disregard of its process or disobedience of its precept, common justice demands that the offender should have an opportunity to purge himself of the offense. The usual practice being to serve a rule on the party to show cause, etc. 4. Same : Attachment. If the respondent fails to make a true return on the writ of habeas corpusj. an attachment is the proper process to bring the party into court to answer for the contempt. ■

Error to the Circuit Court of Lee County. Hon. B. B. Boone, Judge. The facts in this ease are very fully stated in the opinion of the court. The only question considered by the court being, whether it had jurisdiction of such cases. It is unnecessary to enumerate the various assignment of errors. 1. The writ of habeas corpus does not show that it was issued by the officer appointed by the fiat of the judge to issue it. 2. The writ of habeas eorpus was not made returnable within a reasonable time. 8.Final judgment was entered against the appellant, A. A. Shattuek, in the first instance, and without notice to him. 4. Said judgment was based on the ex parte affidavits of the attorneys for D. L. Low, the relator, a mode of trial unknown to law and not “ by due course of law,” repugnant to our constitution, and before any papers in the habeas corpus case had beea filed in court. 5. Said judgment was rendered in the absence of this appellant.. 6. The affidavits of F. S. White, S. M. Meek and L. F. Bradshaw, show that the relator was not in the custody of this appellant. 7. Said affidavits show that if any contempt of the process of the court occurred, it was committed by J. W. Sanders, the jailer of Colfax county, and a party cannot be guilty of contempt by proxy. 8. Said affidavits show that J. EL Shipman, the deputy sheriff of Shattuek, attempted to execute said writ, but was prevented by said jailer. 9. Said affidavits do not show that A. A. Shattuek failed to execute said writ. 10. Said affidavits show that H. B. Whitfield, the district attorney of the seventh judicial district, in which the relator was imprisoned, had forbidden the removal of Low by this appellant. 11. The record shows no notice of this habeas corpus proceeding; was issued to or served on the district attorney in whose district the relator was imprisoned. 12. The coroner’s return shows that this appellant was, at the time of said alleged contempt, at his home confined to his bed by severe sickness. 13. The record shows that A. A. Shattuck was not summoned to appear and show cause against the said fine of $500 being made final. 14. The record shows that A. A. Shattuck never was under the jurisdiction of the court to abide its judgment or for any other cause. 15. The record shows that Shattuck was never present before said court, but was sick in bed, and that he was not allowed time nor opportunity to make any defense, but was peremptorily and summarily punished without hearing or trial. 16. A. A. Shattuck has never had his day in court. 17. The record shows that said habeas corpus trial was had in vacation, and not before any regular court, and that execution was ordered to issue for said fine, instead of an order that appellant stand committed. 18. The record shows that said habeas corpus trial was had in vacation, and not before any regular court, and that execution was ordered to issue for said fine, returnable to the circuit court dí Lee county at its regular term, instead of to Chickasaw county. 19. The record shows that the alias writ of habeas corpus was issued by the chancery clerk of Lee county. 20. The writ of attachment against Shattuck was issued by the áhancery clerk óf Lee county, who had no authority, the circuit' clerk being the clerk of the court. Construction of the law. Black. Com., 59, 60, §§ 3, 4 and 5; Code, 1871, § 1415 ; see also §§ 1409, 1412, 1415 ; 38 Miss., 331. The judgment is void. 1 S. & M., 351; 4 id., 751; 41 Miss., 49 and 668; 10 S. & M., 159; 3 id., 529; 4 id., 538 and 549; 1 id., 521 and 584; 5 id., 559 ; 7 id., 85,127 and 449 ; 9 id., 613. ' The proceedings must be legal or the high court will interfere. Const., art. I, §§ 2 and 7 ; 4 S. & M., 778 ; 10 id., 103 ; 4 How., 401; 7 id., 127; 35 Miss., 383 ; 2 J. J. Marsh., 275 ; 4 Paige, 378 ; 1 Ya. cases, 330 ; 1 Scam., 440; 2 Sand., 724; Co. on Lit., 288 ; 3 Scam., 402 ; 6 Johns., 335; 1 Hill, 139; 6 Cow., 381. The court had but limited or special jurisdiction. Code, 1871, §§ 1400 and 1408. Not generally reviewable, but at discretion. 4 S. & M., 778; 13 id., 302; 41 Miss., 404; 43 id.,.373; 37 id., 605. The judgment nisi was void for want of notice. 35 Miss., 382 ; 31 id., 133 ; 3 Cush., 883 ; 1 S. & M., 521; 7 id., 85; 9 id., 613; Code, 1871, §§ 225, 226, 286, 700, 2250 and 2253. The judgment was not in due course o£ law. 7 S. & M., 475 ; 5 How., 157; Const., art. I, §§ 2 and 7. He was not present in court. 49 Miss., 716. He must be personally present to purge himself of the contempt. 10 S. & M., 103. The evidence was illegal. 7 S. & M., 475 ; 39 Miss., 318. Filed a brief and written argument on the facts, and cited and commented on the following authorities : Black. Com., book IY, 287 5 In re Hickey, 4 S. & M., 783 ; Code, 1871, §§ 410, 411. (7. B. Harris, Attorney General, for the state, insisted that this court has no jurisdiction, and cited, 4 S. & M., 754; 25 Miss., 883 ; 36 id., 331; Code, 1871, §§ 221, 404, 533, 979, 1400, 1407, 1411 and 1414.