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ments in civil contempt proceedings, under the court of appeals act, still it may not do so unless there is involved some one or more of those essential elements which that act says must be present to give it such jurisdiction to review any final judgment. Whether, by the amendments to §§ 328, 329, and 334 of the Code of Civil Procedure, passed by the thirteenth general assembly (Sess. Laws 1901, p. 93), the jurisdiction of the supreme court to review judgments in contempt proceedings is, in any respect, different from what it is under the court of appeals act, we need not here determine; for this contempt was committed before these amendments were in force, and the writ was pending in the court when the act took effect, and so was within its saving clause. The writ of error is dismissed for want of jurisdiction."

The Mississippi Code of 1906 (§ 39) authorizes an appeal from the judgment of any court punishing a person for contempt. A decree requiring a party to purge himself on pain of being sentenced for the contempt charged, not being a final decree, is not appealable under that statute. See Nutt v. State (1909) 95 Miss. 422, 49 So. 145.

In Oregon an appeal from a judg ment rendered in a contempt proceeding brings up for consideration the question of the validity of a temporary injunction, even though it be assumed or held that the order for the injunction is a nonappealable order. State ex rel. Salem King's Products Co. v. La Follette (1921) 100 Or. 1, 196 Pac. 412.

A chancellor has wide discretion in respect to attachments for violating injunctions, and his decision will not be reversed unless that decision is grossly abused. Howard v. Durand (1867) 36 Ga. 346, 91 Am. Dec. 767; Thweatt v. Gammell (1876) 56 Ga. 98; Hayden v. Phinizy (1881) 67 Ga. 758; West Disinfecting Co. v. Koppelman (1920) 216 Ill. App. 438; AshMadden-Rae Co. V. International Ladies Garment Workers' Union (1919) 290 Ill. 301, 125 N. E. 258; Fiedler v. Bambrick Bros. Constr. Co.

(1912) 162 Mo. App. 528, 142 S. W. 1111.

But the appellate court will not hesitate to interfere where the power of the trial court has been arbitrary or unduly severe. Ash-Madden-Rae Co. v. International Ladies Garment Workers' Union (1919) 290 II. 301, 125 N. E. 258; Rothschild & Co. v. Boston Store (1920) 219 Ill. App. 419; Willett v. Tichenor (1920) Mo. App. —, 220 S. W. 709; Power v. Athens (1879) 19 Hun (N. Y.) 165.

A judgment against a contemner on a hearing in a proceeding for the alleged violation of an injunction will not be disturbed where there is evidence to warrant such judgment. Mormand v. Carlisle (1908) 131 Ga. 493, 62 S. E. 705; Re Bd. of Health (1893) 69 Hun, 110, 23 N. Y. Supp. 394; Scranton v. People's Coal Co. (1922) 274 Pa. 63, 117 Atl. 673; State ex rel. Curtis v. Erickson (1912). 66 Wash. 639, 120 Pac. 104, affirmed in (1914) 234 U. S. 103, 58 L. ed. 1237, 34 Sup. Ct. Rep. 717.

But an order adjudging a person guilty of contempt for the violation of an injunction will be remanded for further proceedings, where there is no recital of a finding of any fact whereon to base the judgment of the trial court, and it is impossible to find in the record the facts on which the trial court based its judgment. American Nat. Bank v. Mt. Carmel Public Utility & Service Co. (1921) 221 Ill. App. 476.

In conformity to the rule that the orders and judgments of a court having jurisdiction must be obeyed until reversed or set aside in a direct proceeding for that purpose, a contemner cannot urge that the granting of an injunction was erroneous, in a proceeding for contempt for its violation. Ash-Madden-Rae Co. v. International Ladies Garment Workers' Union (III.) supra; American Cigar Co. v. Berger (1920) 221 Ill. App. 285; People ex rel. Davis v. Sturtevant (1853) 9 N. Y. 263, 59 Am. Dec. 536; New York v. New York & S. I. Ferry Co. (1876) 64 N. Y. 622.

Thus it was said in Court Rose, F. A. v. Corna (1917) 279 Ill. 605, 117

ever.

N. E. 144: "Where an injunction, order, mandate, or decree of a court has been disobeyed or disregarded, and there is a proceeding for contempt of the court for such disobedience or disregard, the only question to be considered is whether the court had jurisdiction to make the order or decree. Jurisdiction is the power to hear and determine a matter in controversy, and, if the power existed, the question whether the court erred or the power was improperly exercised is not involved, and errors of the court constitute no defense whatAn injunction void because of want of jurisdiction in the judge who ordered it may be disregarded, and the person disregarding it is not guilty. of contempt, . . . but a party enjoined cannot refuse to obey the injunction, upon the ground that it is erroneous or improvidently granted. If the bill upon which an injunction is granted is defective, it must be tested by demurrer in court and not by disobedience to the writ. The jurisdiction of a court of equity does not depend upon the correctness of the decision made, but an order made in the exercise of jurisdiction must be obeyed until the order is modified or set aside by the court making it, or reversed in a direct proceeding by appeal or on error."

b. Where particular violation is regarded as criminal contempt.

View that no appeal lies.

In some jurisdictions, where the particular violation of an injunction is regarded as a criminal contempt, it is held that no appeal lies therefrom. Phillips v. Welch (1876) 11 Nev. 187; Marinan v. Baker (1904) 12 N. M. 451, 78 Pac. 531; Ex parte Whitmore (1894) 9 Utah, 441, 35 Pac. 524; Elliot v. Whitmore (1894) 10 Utah, 246, 37 Pac. 461; Re Murphey (1876) 39 Wis. 286; Williamstown v. Darge (1888) 71 Wis. 643, 38 N. W. 187; State ex rel. Oshkosh Trunk Co. v. Goerlitz (1920) 172 Wis. 581, 179 N. W. 812. And see the reported case (KELLY V. MONTEBELLO PARK CO. ante, 33).

Thus it was said in Ex parte Whit

more (1894) 9 Utah, 441, 35 Pac. 524: "The authorities bearing upon the question as to the right of a party to appeal from a judgment of conviction in a contempt proceeding seem to be in great confusion, but upon a careful examination it will be found that this condition results largely from the different provisions of the statutes bearing upon that question, and upon the question as to whether or not the contempt charged was of a civil or criminal nature. It is unquestionably true that every superior court of record, at common law, is the sole judge of contempts against its authority and dignity, and the judgment of every such court in cases of contempt, at common law, is final and conclusive, and not reversible by appeal or otherwise unless specially authorized by statute. . . Under our statutes,

these acts of disobedience of the lawful judgment, order, and process of the court, both in their origin and punishment, partake of the nature of crimes, which are a violation of a public law, and while there may be traces tending to the protection of a private. right, yet the whole aim, purpose, and object is the punishment for the violation of a public law and order in the vindication of public justice, and, hence, may be properly denominated criminal contempts. So, under our statutes, all the elements of wilfulness or evil intention enter into and char acterize the acts charged and punished. The statute defines some of them as disorderly, contemptuous behavior to the court or judge, tending to interrupt the course of justice; deceit or abuse of the process or proceedings of the court by a party to an action or special proceeding; disobedience of any lawful judgment, order, or process of the court. Under our statute this offense is punishable by fine and imprisonment. It is an offense public in its nature, which tends to cast discredit upon the administration of public justice. . . . It would indeed seem anomalous that an appellate court should have the power to compel an inferior court to punish a criminal contempt,-an insult to the judge or a wilful breach of peace in

open court, a wilful disobedience of a lawful order or judgment which such inferior court had refused to punish, -or that it should have power to review the action of such inferior court, and discharge one whom that court had adjudged guilty of such contempt.

From an examination of the authorities, we are satisfied that, under our statute, an appeal does not lie in this court from the judgment and conviction attempted to be appealed from."

In State v. Goerlitz (1920) 172 Wis. 581, 179 N. W. 812, the court said: A criminal contempt is an offense against the authority and dignity of the court, and therefore raises an issue with the court as the representative of organized society, and, while such offenses may be committed in the course of private litigation, the offense is none the less public in its nature. The question is, May a party disregard commands laid upon him by organized society acting through the courts, relying for justification upon his own judgment and in disregard of the established forms of law? A statement of this question is a sufficient answer to it. When courts are no longer obeyed, or their decrees not enforced or may be set aside by individual action, then organized society will cease to exist, and each citizen must become the guardian of those entitled to his protection and the protector of their right to life, liberty, and the pursuit of happiness. In other words, society will revert to the primitive order. The power of the courts must be maintained if representative government is not to fail. The order finding the defendants guilty of criminal contempt and fixing punishment was not appealable."

So, it was said in Marinan v. Baker (1904) 12 N. M. 451, 78 Pac. 531: "A contempt of court such as these petitioners have been found guilty of being a criminal offense, have they a right by appeal to have the judgment of the district court reviewed by this court? This is the only question presented by the petition. Section 10 of the organic act of this territory (§ 1869, Rev. Stat. 1878, Comp. Stat. §

3459, 9 Fed. Stat. Anno. 2d ed. p. 569) conferred appellate jurisdiction upon this court, and granted this jurisdiction in the following language: 'Writs of error, bills of exception, and appeals shall be allowed in all cases from the final decisions of the district courts to the supreme court of all the territories respectively under such regulations as shall be prescribed by law.' Section 1868 of the Revised Statutes of the United States provides that 'the supreme court and the district courts respectively, of every territory, shall possess chancery as well as common-law jurisdiction.' This section has invested this court with common-law jurisdiction in the exercise of its appellate jurisdiction as well as in the exercise of its original jurisdiction. The petitioners, by this proceeding, have invoked the appellate jurisdiction of the court in this, that the ultimate relief they seek is the review by this court of the judgment which has deprived them of their liberty by confining them in the jail of Bernalillo county. If this court has not power to review that judgment, then it has no jurisdiction, appellate or otherwise, in this application to relieve the petitioners from their confinement. The grant of jurisdiction to this court by § 10 of the organic act of this territory has preserved to litigants writs of error and a review by appeal; but the jurisdiction conferred either by the process of appeal or writ of error in common-law jurisdiction. In determining the extent of the jurisdiction thus conferred upon, this court, we are remitted to the common law. The terms 'writs of error' and 'appeals' had a technical significance well known and accurately defined. The 'appeal' was the process by which decrees in suits in chancery were reviewed, and the 'writ of error' was the process designed for the review of actions at law. At common law the review of a judgment in a criminal case could not be had by the process of appeal.' . It is a necessary sequence, then, that this court has no power to review the judgment of the district court by the process of 'appeal,' that judgment.

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having been in a criminal cause or proceeding, unless the jurisdiction to so review it by 'appeal' has been granted from some source other than the act of Congress heretofore referred to. The only other source from which this court could derive jurisdiction to review that judgment is territorial legislation enacted pursuant to the grant of power from Congress contained in § 1851 of the Revised Statutes of the United States (Comp. Stat. § 3438, 9 Fed. Stat. Anno. 2d ed. p. 545), to the effect that 'the legislative power of every territory shall extend to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States.' The fixing and limiting of the jurisdiction of the courts, both district and supreme, of this territory, is a rightful subject of legislation, and is not inconsistent with the Constitution and laws of the United States. Sec. 1866, United States Rev. Stat. . . . The territorial legislature, pursuant to the grant of power extending the legislative power to all rightful subjects of legislation, enacted § 3406, Compiled Laws of New Mexico of 1897, and thereby conferred jurisdiction upon this court to review by appeal final judgments 'rendered upon any indictment.' We have been referred to no other enactment which confers jurisdiction upon this court to review criminal causes by appeal. It will be observed that the judgments which may be reviewed by appeal under the provisions of § 3406, supra, are limited to such judgments as were rendered upon indictments. The judgment of the district court adjudging these petitioners guilty of a contempt of court, not being 'rendered upon an indictment,' is not such a judgment as this court was given power to review by that section.

This court not having power under the organic act to review by appeal judgments rendered in proceedings of contempt, and not having such power conferred upon it by the legislature of New Mexico, it follows that the petition filed in this cause must be dismissed. Holding, as we do, that there is no right of appeal

from the judgment of the district court, it is unnecessary that we express any opinion upon the other questions presented by the respondent's motion to dismiss the relator's petition."

View that appeal lies.

On the other hand, in South Carolina the supreme court entertains jurisdiction of appeals from criminal contempt decrees for the violation of an injunction, both because such decrees are final orders in special proceedings under the statute governing appeals from such orders, and also because of its appellate jurisdiction in criminal cases. State v. Nathans (1896) 49 S. C. 199, 27 S. E. 52, wherein the court said: "The practice in this state has been uniform; sometimes the proceedings are in the name of the state against the offender, sometimes bearing the title of the cause out of which the proceedings arose, sometimes entitled as in this case. If we may be here permitted to suggest a logical practice, we would say, where the object is punishment alone, the proceedings should be in the name of the state; where the object is to compel performance of an act as a remedy for a party, the proceedings should bear the title of the cause in which relief is sought; and where punishment for the public offense and a remedy for a private. suitor are both sought in the same proceeding, the title may be as in this case. But form is not essential. Whatever the form of the proceedings, unless used as a mere remedy to compel the performance of an act to which a suitor is entitled, the proceedings are criminal. Such a proceeding is a special criminal proceeding, summary in its nature and distinct from the cause in which it may arise. This court entertains appeals from a judgment or order in contempt proceedings, not only because such order is a final order in a special proceeding, in the sense of § 3 and § 11, subdivision 3, of the Code, but because of its appellate jurisdiction in criminal cases."

An appeal from an order of injunction, however, does not operate as a

supersedeas. Jennings v. Jennings (1916) 104 S. C. 242, 88 S. E. 527, 740, wherein the court said: "Section 395 of the Code of Procedure, which is relied upon by appellants, is not applicable. The legislature did not intend by that section that an appeal from an order of injunction should have the effect of suspending or superseding the order. It was only intended that in cases not therein provided for, an appeal shall 'stay proceedings in the court below,' pending the appeal."

In a few jurisdictions the right to appeal is expressly given by statute. Thus, it was said in Staley v. South Jersey Realty Co. (1914) 83 N. J. Eq. 300, L.R.A.1917B, 113, 90 Atl. 1042, Ann. Cas. 19163, 955: "Contempts are of two sorts, civil and criminal. The distinction has been frequently pointed out. . . . In a civil contempt the proceeding is remedial; it is a step in the cause the object of which is to coerce one party, for the benefit of the other party, to do or to refrain from doing some act specified in the order of the court. Hence, if imprisonment be ordered it is remedial in purpose and coercive in character, and to that end must relate to something to be done by the defendant by the doing of which he may discharge himself. As quaintly expressed, the imprisoned man 'carries the keys to his prison in his own pocket.' Criminal contempts,

on the other hand, as the term implies, are offenses against organized society which, although they may arise in the course of private litigation, are not a part thereof, but, like other criminal offenses, raise an issue between the public and the accused. Hence, if imprisonment be adjudged, it is, by analogy with the criminal law, punitive in purpose and definite in character. So marked is the difference between the two sorts of imprisonment that it serves as a practical test by which the two sorts of contempt may be distinguished.

Judged by this test, the order brought up by this appeal was for a criminal contempt; it was for the doing of an act forbidden, and the

punishment was imprisonment for a definite term. In principle the present case is indistinguishable from Frank v. Herold, in which, as in this case, the defendants were adjudged guilty of a contempt of the court of chancery for wilfully violating a restraining order of that court, and were sentenced to imprisonment for a definite term. The appeal was dismissed by this court upon the express ground that the proceeding was a criminal contempt, in which, as the law then stood, an appeal did not lie. The legislature has since given a right of appeal under which the present case is now before us. This statute was passed in 1909 (P. L. 1909, p. 270)."

Prior to the New Jersey statute an appeal from an order adjudging a person guilty of a criminal contempt would not lie. Grand Lodge, K. P. v. Jansen (1901) 62 N. J. Eq. 737, 48 Atl. 526; Frank v. Herold (1902) 64 N. J. Eq. 371, 51 Atl. 774, writ of error dismissed in (1903) 191 U. S. 559, 48 L. ed. 302, 24 Sup. Ct. Rep. 844.

In North Dakota any final order of conviction in a contempt case may be reviewed in the supreme court. Rev. Codes 1899, § 5954. This statute has been held to be applicable to an order adjudging a person guilty of a criminal contempt for the violation of an injunction. State State ex rel. Morrill v. Massey (1901) 10 N. D. 154, 86 N. W. 225, wherein the court said: “On appeal this court is authorized to review all the proceedings and evidence, but the statute confers no authority upon this court to try the proceeding anew, and, without express authority to sit as a trial court, the functions of this court, as an appellate tribunal, are limited to a review of the record for the correction of errors. The section authorizing an appeal in contempt cases provides for the settlement of a statement of the case, as in jury cases, and, where a review of the evidence is sought, the appellant is required to specify particulars wherein. the evidence is deemed to be insufficient."

Prior to the foregoing statute, a criminal contempt could not be ap

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