Thus, a party may be punished as for a contempt of court for failure to pay alimony in obedience to a decree or order. The refusal to execute a deed or other instrument, in obedience to a decree; the violation of an injunction;10 the interference with property in the hands of a receiver;11 the unauthorized bringing of a suit against a receiver;12 the refusal of a defendant to obey a subpoena to appear before a master in chancery,1 -are instances of contempts particularly applicable to procedure in courts of equity.14 It is held that a court will not punish as for a contempt where there is another mode of proceeding. Thus, an application for a writ of assistance, and not

13

8 Wightman v. Wightman, 45 Ill. 167; Haines v. Haines, 35 Mich. 138; Lansing v. Lansing, 41 How. Pr. (N. Y.) 248; O'Callaghan v. O'Callaghan, 69 Ill. 552.

Morris v. Walsh, 9 Bosw. (N. Y.) 636; Hilliker v. Hathorne, 5 Bosw. (N. Y.) 710; Buffum's Case, 13 N. H. 14. But see Goebel v. Stevenson, 35 Mich. 172.

10 See supra, § 515 et seq.

11 See supra, § 477.

12 See supra, § 14.

13 St. John v. Sewall, 3 Edw. Ch. (N. Y.) 248. See, however, Holcomb v. Jackson, 2 Edw. Ch. (N. Y.) 620.

14 For an extensive enumeration of acts constituting contempts of court, and a full discussion of the law relating thereto, see Rapalje, Contempt. It is held contempt of court for a party, after being notified by his counsel that his cause is ready for trial, and to come at once, to falsely answer, to obtain a continuance, that he is ill and cannot come; and this, if he disclaim any purpose to commit a contempt. Carter v. Com., 96 Va. 791, 32 S. E. 780; Welch v. Barber, 52 Conn. 147, 52 Am. Rep. 567. For cases involving writing letters to the court, see In re Pryor, 18 Kan. 72, 26 Am. Rep. 747; State v. Waugh, 53 Kan. 688, 37 Pac. 165. For power to punish attorneys for contempt of court in advising disobedience of an order, see Wells v. Com., 21 Grat. (Va.) 503; Ex parte Robinson, 19 Wall. (U. S.) 505. See, however, In re Dubose, 109 Fed. 971. For what constitutes contempt in the presence of the court, see Savin, Petitioner, 131 U. S. 267; Sharon v. Hill, 24 Fed. 726; In re Cooper, 32 Vt. 258; United States v. Patterson, 26 Fed. 509; United States v. Carter, 3 Cranch, C. C. 423, Fed. Cas. No. 14,740; United States v. Emerson, 4 Cranch, C. C. 188, Fed. Cas. No. 15,050; State v. Garland, 25 La. Ann. 532; Com. v. Dandridge, 2 Va. Cas. 408; Ex parte O'Brien, 127 Mo. 477, 30 S. W. 158; Baker v. State, 82 Ga. 776, 9 S. E. 743, 14 Am. St. Rep. 192, 4 L. R. A. 128; People v. Stapleton, 18 Colo. 568, 33 Pac. 167; Storey v. People, 79 Ill. 45; People v. Wilson,

an attachment for contempt, is the proper proceeding to let into possession a purchaser of lands at a foreclosure sale.15

§ 537. Void orders.

A party cannot be guilty of contempt of court for disobeying orders which it had no authority to make, but want of power must not be confused with mere irregularity in the exercise of power. If the court has jurisdiction of the parties, and legal authority to make the order, the party cannot refuse to obey it, however improvidently or erroneously made.16

§ 538. Preliminaries to bringing party into contempt.

In general, where the alleged contempt consists in the disobedience of an order or decree, the order or decree must be served on the party before he can be proceeded against.17 Such service is made by showing to the party the original order, and delivering to him a copy thereof,18 or by delivering to him a cer

64 Ill. 195, 16 Am. Rep. 528; Ex parte Barry, 85 Cal. 603, 25 Pac. 256; Territory v. Murray, 7 Mont. 251, 15 Pac. 145; In re MacKnight, 11 Mont. 126, 27 Pac. 336, 28 Am. St. Rep. 451; In re Hughes, 8 N. M. 225, 43 Pac. 692; Myers v. State, 46 Ohio St. 473, 22 N. E. 43, 15 Am. St. Rep. 638. For contempt by attorneys, see Territory v. Clancey, 7 N. M. 580, 37 Pac. 1108; Chafee v. Quidnick Co., 13 R. I. 442; People v. O'Brien, 196 Ill. 250, 63 N. E. 667; Ex parte Bradley, 7 Wall. (U. S.) 364. For tampering with witnesses, see Savin, Petitioner, 131 U. S. 267; Whittem v. State, 36 Ind. 196; In re Brule, 71 Fed. 943; Foley v. Stone, 15 Civ. Proc. R. 224, 3 N. Y. Supp. 288.

15 Murphy v. Abbott, 13 Ill. App. 68, citing Fackler v. Worth, 13 N. J. Eq. 395; In re Hirst, 9 Phila. (Pa.) 216.

16 Leopold v. People, 140 Ill. 552, 30 N. E. 348; Cape May & S. L. R. Co. v. Johnson, 35 N. J. Eq. 425; People v. Weigley, 155 Ill. 491, 40 N. E. 300; Clark v. Burke, 163 Ill. 334, 45 N. E. 235; Lester v. People, 150 II. 408, 23 N. E. 387, 41 Am. St. Rep. 375; Ex parte Gardner, 22 Nev. 280, 39 Pac. 570; Silliman v. Whitmer, 173 Pa. 401, 34 Atl. 56; People v. Van Buren, 136 N. Y. 252, 32 N. E. 775; Ex parte Stickney, 40 Ala. 160; Sullivan v. Judah, 4 Paige (N. Y.) 444; People v. Sturtevant, 9 N. Y. 263.

17 Ex parte Wallis, 6 Cow. (N. Y.) 581; Lorton v. Seaman, 9 Paige (N. Y.) 609. But service may be waived by answering interrogatories without objection. People v. Kearney, 21 How. Pr. (N. Y.) 74.

1 Howland v. Ralph, 3 Johns. (N. Y.) 20; St. John v. Hubbard, 1 Wend. (N. Y.) 94.

tified 19 of the order.1 copy Where the order is for the payment of money, in addition to such service, compliance with the order must be explicitly demanded.20 A reasonable time must be allowed for compliance with the order.21 But in Illinois it has been held that no service of a copy of the decree or order on a party to a suit is necessary, it being laid down that after a party has once been brought into court the presumption is that he is present and cognizant of every step taken in the cause until it is terminated, unless considerable time has elapsed without taking steps in the case.2

22

§ 539. Practice upon contempts.

There is no settled practice in contempt proceedings.28 As a general rule, if a contempt is committed in the face of the court, the offender may be instantly apprehended and imprisoned at the discretion of the judges, without any further proof or examination; but in matters that arise at a distance, and of which the court cannot have so perfect a knowledge, unless by the confession of the party, or the testimony of others, if the judges, upon affidavit, see sufficient ground to suspect that a contempt has been committed, they either make a rule on the suspected party to show cause why an attachment should not issue against him, or, in very flagrant instances of contempt, the attachment issues in the first instance, as it always does if no sufficient cause be shown to discharge; and thereupon the court confirms and makes absolute the original rule. This process of attachment is merely intended to bring the party into court, and, when there, he must either stand committed, or put in bail in order to answer upon oath to such interrogatories as shall be

19 Perrine v. Broadway Bank, 53 N. J. Eq. 221, 33 Atl. 404.

20 Swinfen v. Swinfen, 37 Eng. Law & Eq. 327; Rapalje, Contempt, § 89. This requirement is held to apply to an order to pay alimony. Brown v. Brown, 22 Mich. 299.

21 State v. Sheriff, 1 Mill. Const. (S. C.) 145. As to practice in federal courts, see Souter v. La Crosse R. Co., 1 Woolw. 80, Fed. Cas. No.

13,180.

22 O'Callaghan v. O'Callaghan, 69 Ill. 552; Petrie v. I'eople, 40 Ill. 334. 23 United States v. Sweeney, 35 Fed. 434.

administered to him, for the better information of the court, with respect to the circumstances of the contempt. These interrogatories are in the nature of a charge or accusation, and must, by the course of the court, be exhibited within a limited. time.24

§ 540. Entitling cause.

Considerable confusion exists concerning the manner in which contempt proceedings should be entitled. In some jurisdictions it is held that they should be entitled in the original cause; in others, that they should be entitled in the name of "The People," or "The State."25

24 4 Bl. Comm. 287, quoted with approval in Kyle v. People, 72 IIL App. 171, 177; Ex parte Petrie, 38 Ill. 498; Ex parte Terry, 128 U. S. 289; Easton v. State, 39 Ala. 551; Rapalje, Contempt, § 93; Com. v. Dandridge, 2 Va. Cas. 408. See, also, In re Wood, 82 Mich. 78, 45 N. W. 1113, and authorities there cited.

25 People v. Diedrich, 141 Ill. 665, 30 N. E. 1038; Buck v. Buck, 60 Ill. 105; People v. Craft, 7 Paige (N. Y.) 325; Haight v. Lucia, 36 Wis. 355; Rice v. Small, 1 Del. Ch. 68. In People v. Craft, 7 Paige (N. Y.) 325, it is said that, in proceedings in equity between parties to a suit for contempt in not obeying the process of the court, or any order or decree in the case, the proceedings on the contempt may be, and usually are, entitled as in the original suit, though it is not irregular to entitle them in the name of the people on the relation of the party prosecuting the attachment against the defendant or party proceeded against. Where the attachment proceeding for contempt is against a witness, or a person not a party to the suit, the practice is to entitle the order for attachment and all subsequent proceedings therein, in the name of the people, on the relation, etc. See, also, Stafford v. Brown, 4 Paige (N. Y.) 360; United States v. Wayne, Wall. Sr. 134, Fed. Cas. No. 16,654; Fischer v. Hayes, 6 Fed. 63; People v. Diedrich, 141 Ill. 665, 30 N. E. 1038; Winslow v. Nayson, 113 Mass. 411; State v. Harper's Ferry Bridge Co., 16 W. Va. 864. Where the contempt consists of something done or omitted in the presence of the court, tending to impede or interrupt its proceedings, or lessen its dignity, or, out of its presence, in disregard or abuse of its process, or in doing some act injurious to a party protected by the order of the court, which has been forbidden by its order, the proceeding is punitive, and is inflicted by way of punishment for the wrongful act, and to vindicate the authority and dignity of the people, as represented in and by their judicial tribunals. In such cases, although the application for attachment, when necessary to be made, may be made and filed in the orig

§ 541. The affidavit or information.

It is said that the proceedings against a party for constructive contempt must be commenced by an information, under oath, or an affidavit specifically stating the facts complained of. An attachment may then be issued, or an order to show cause entered. The person accused has the right to be heard either personally or by attorney. If the alleged contempt is admitted, the court may render judgment thereon. If the acts complained of are denied, the court should then weigh the evidence, and determine whether the party is guilty or not.26 The affidavit should set forth a case which, if unexplained by the defendant, shows his liability.27 The facts constituting the contempt must be clearly stated.2 If a demand is necessary, the same must be alleged.29 In a proceeding to punish a party for the breach of an injunction, the party complaining must not only show a breach, but he must also show that he has in some way been in

28

inal cause, the contempt proceeding will be a distinct case, criminal in its nature, and may be properly docketed and carried on as such, and judgment entered therein will exhaust the power of the court to further punish for the same act and offense. Lester v. People, 150 Ill. 408, 23 N. E. 387, 37 N. E. 1004, citing Ex parte Kearney, 7 Wheat. (U. S.) 42; Cartwright's Case, 114 Mass. 238; City of New Orleans v. New York Mail Steamship Co., 20 Wall. (U. S.) 392; Ingraham v. People, 94 Ill. 428; In re Bronson, 12 Johns. (N. Y.) 460, note.

26 Nebraska Children's Home Soc. v. State, 57 Neb. 765, 78 N. W. 267; Gandy v. State, 13 Neb. 445, 14 N. W. 143; Rex v. City of Lyme Regis, 1 Doug. 149; People v. Brower, 4 Paige (N. Y.) 405; Brownson v. Reynolds, Hopk. Ch. (N. Y.) 416; Murdock's Case, 2 Bland (Md.) 461; In re Daves, 81 N. C. 72. See Albany City Bank v. Schermerhorn, 9 Paige (N. Y.) 372. It is held that, though a rule to show cause is usually grounded on affidavit, it is not essential, if the contempt sufficiently appears to the court. State v. Frew, 24 W. Va. 416; In re Deaton, 105 N. C. 59, 11 S. E. 244; Com. v. Dandridge, 2 Va. Cas. 408.

27 State v. Henthorn, 46 Kan. 613, 26 Pac. 937; State v. Mitchell, 3 S. D. 223, 52 N. W. 1052; Batchelder v. Moore, 42 Cal. 415; McConnell v. State, 46 Ind. 298; State v. Sweetland, 3 S. D. 503, 54 N. W. 415.

28 Worland v. State, 82 Ind. 49.

29 Lorton v. Seaman, 9 Paige (N. Y.) 609.