43

(4) Rule to show cause. to show cause why an attachment should not issue against the party proceeded against, or why he should not be adjudged guilty, and punished for contempt.44 This rule is predicated on the principle that he may not be guilty, and may have some excuse to offer, and on the important reason that no man ought to be condemned without a hearing, however summary the proceedings may be.45 The time given in the rule to show cause varies according to circumstances. Reasonable time should be given.46 There are exceptions to the general rule that an order to show cause should be made.47 Thus, where a party's refusal to make an assignment of property to a receiver in pursuance of an order is reported to the court, and he is present when the matter is considered, and makes no objection to the proceeding, and is fully heard by himself and counsel in the matter, and, after being ordered to execute the assignment, refuses to do so, the court will be justified in making an order for his commitment for a contempt without any rule on him to show cause to the contrary.48 The order to show cause

The most usual course is a rule

v. People, 40 Ill. 334; McCredie v. Senior, 4 Paige (N. Y.) 378; State v. Matthews, 37 N. H. 450; Schoonmaker v. Gillett, 3 Johns. Ch. (N. Y.) 311; Com. v. Dandridge, 2 Va. Cas. 408; Jackson v. Smith, 5 Johns. (N. Y.) 115; Gates v. McDaniel, 3 Port. (Ala.) 356. When a party to a divorce suit fails to comply with an order directing the payment of a certain sum of money into the hands of the clerk, an attachment may issue without a rule to show cause. Petrie v. People, 40 Ill. 334. When it appears that the defendant alleged to have violated an injunction is about to leave the state, an attachment returnable immediately may issue. Thornton v. Davis, 4 Cranch, C. C. 500, Fed. Cas. No. 13,998.

43 Hollingsworth v. Duane, Wall. Sr. 141, Fed. Cas. No. 6,617; State v. Matthews, 37 N. H. 450.

44 Ex parte Petrie, 38 Ill. 498.

45 State v. Sheriff of Charleston Dist., 1 Mill, Const. (S. C.) 145; Gates v. McDaniel, 3 Port. (Ala.) 356; Fanshawe v. Tracy, 4 Biss. 490, Fed. Cas. No. 4,643.

46 American Construction Co. v. Jacksonville, T. & K. W. Ry. Co., 52 Fed. 937.

47 Monroe v. Bradley, 1 Cranch, C. C. 158, Fed. Cas. No. 9,713; Respublica v. Newell, 3 Yeates (Pa.) 407, 2 Am. Dec. 381.

48 Tolman v. Jones, 114 Ill. 147, 28 N. E. 464.

should be sufficiently full and precise to inform the person alleged to be guilty of contempt of the nature of the accusation.49 By some authorities, it is laid down that the rule to show cause may be served either on the party or his solicitor,50 while, by others, personal service is required, unless the party evades service.51

§ 545. Form of order to show cause.

State of Oregon, Plaintiff, vs. J. B., Jr., Defendant.

In the Circuit Court of the State of Oregon for the County of Multnomah.

And now, this day, the affidavit of A. C. E., Esq., having been filed in this court in the matter entitled, "In the matter of letters rogatory from the superior court of Suffolk county, Massachusetts, in the case of A. B. E. vs. J. S., Jr., pending therein," and it being shown to the court by the said affidavit that the above-named J. B., Jr., has disobeyed the process of this court duly served upon him, requiring him to appear and testify before said A. C. E., Esq., notary public, as commissioner, under commission from the superior court of Suffolk county, Massachusetts, in said case of E. vs. S., pending therein, by failing to appear before said commissioner at the time and place named in said process, upon the motion of A. B. E., by W. M. G., her attor. ney:

It is therefore ordered that said J. B., Jr., be required to be and appear before this court at 1:30 o'clock p. m. of this day, or, if service hereof be not so soon made upon him, then forthwith upon service hereof, then and there to show cause why he should not be arrested to answer for contempt of this court in disobeying the lawful process of this court as above mentioned, duly served upon him.

It is further ordered that a duly-certified copy of this order be forthwith served upon said J. B., Jr.

Dated September 24, 1891.

E. D. S.,

Judge.52

546. The writ of attachment and bail.

Where an attachment is issued to enforce an appearance or

49 Hammersley v. Parker, 1 Barb. Ch. (N. Y.) 25.

50 Albany City Bank v. Schermerhorn, 9 Paige (N. Y.) 372; Pitt v. Davison, 37 N. Y. 235.

51 Hollingsworth v. Duane, Wall. Sr. 141, Fed. Cas. No. 6,617; Bate Refrigerating Co. v. Gilett, 24 Fed. 696; Bonner v. People, 40 Ill. App. 628; State v. Assessors of Taxes, 53 N. J. Law, 156, 20 Atl. 966.

52 This form was taken from State v. Bourne, 21 Or. 225, 27 Pac. 1048. See, also, In re Woolley, 11 Bush (Ky.) 95.

an answer, it should specify the suit in which it is issued, and the object of the process, or, if the body of the writ is general, the name of the suit and the object of the process should be indorsed upon it, so that the respondent may at once comply without application to the court; but when it is issued for contempt in disobeying an injunction, no specification or indorsement setting forth the cause of the proceeding is necessary.58 It is said that the usual practice is, when the defendant is arrested on the attachment, for the officer to take bail, conditioned for his appearance in court on the return day of the writ, and abide the order of the court. But where the attachment issued to enforce an appearance or answer, or for nonpayment of costs, or not obeying an order or decree, the respondent is to be brought into court by the officer.54 In New York, however, it was held that the sheriff could not take bail upon an attachment out of chancery, although the court could do so.55

The People of the State of Illinois, to the Sheriff of La Salle County, Greeting:

Whereas, it has been made to appear that Charles L. Wilson and Andrew Shuman have printed and published an article which has been adjudged by the said court, now in session at Ottawa, in the aforesaid county and state, to have been printed and published in contempt of said court while so in session as aforesaid:

We therefore command you that you attach the said Charles L. Wilson and Andrew Shuman, so as to have their bodies forthwith before our said supreme court at Ottawa, in the county aforesaid, to answer the said court of the said contempt by them lately committed against it, as it is said, and, further, to do and receive what our said court shall in that behalf consider. Hereof fail not, and have you then and there this writ.

Witness Charles B. Lawrence, chief justice of said court, and the

53 State v. Matthews, 37 N. H. 450; In re Vanderbilt, 4 Johns. Ch. (N. Y.) 57.

54 State v. Matthews, 37 N. H. 450, citing People v. Tefft, 3 Cow. (N. Y.) 340; Morris v. Marcy, 4 Ohio, 83.

55 In re Vanderbilt, 4 Johns. Ch. (N. Y.) 57. As to taking bail, see Kingsbery v. Ryan, 92 Ga. 108, 17 S. E. 689.

seal thereof, at Ottawa, this 6th day of November, in the year of our Lord one thousand eight hundred and seventy-two.

[Seal.]

W. M. Taylor,

Clerk of the Supreme Court.58

§ 548. Appearance.

It is held that, where the contempt proceeding is for the enforcement of a civil remedy, the defendant's personal appearance is not necessary to authorize the court to enter the order of committal, but, in case of criminal contempts, such personal presence is held to be necessary.57 Where a party is under a rule to show cause why an attachment should not issue against him for a contempt, if he relies upon an excuse only, he should appear in his own proper person. Where he fails to do so, no mere excuse can be regarded as a cause for discharging the rule, but only as going to the question of punishment, in the event the court finds the absence of any legal justification in the return.58

It is the duty of the party proceeded against to show cause,that is, to present an answer which, by traverse or otherwise, will meet the charge of the information. By failing to answer, the information is taken as confessed.59

§ 550. Purging contempt.

In courts of law, if the defendant clears himself by his answer, he will be discharged, and the complaint will be dismissed; whereas, in courts of equity, after a party has answered the interrogatories, his answer may be contradicted and disproved by the adverse party. The practice in chancery recognizes no such thing as a replication to an answer to interrogatories filed in the proceeding by attachment for contempt in not complying

56 This form was taken from People v. Wilson, 64 Ill. 195, 236. 67 Barclay v. Barclay, 184 Ill. 471, 56 N. E. 821, citing Pitt v. Davison, 37 N. Y. 235; Rawson v. Rawson, 35 Ill. App. 505.

58 People v. Wilson, 64 Ill. 195; People v. Freer, 1 Caines (N. Y.) 485.

59 Nebraska Children's Home Soc. v. State, 57 Neb. 765, 78 N. W. 267.

with an order of the court.60

Whether a contempt has or has not been committed does not depend on the intention of the party, but on the act done.61 In proceedings for civil contempt, it is of no consequence what is the state of mind of the offending party towards the court, and it is no defense that he did not intend any disrespect, or to be guilty of contempt towards the court.62 From the authorities it would seem that no definite rule can be formulated as to the effect of the disclaimer of an intention to be guilty of contempt. In proceedings to punish for criminal contempts, such disclaimer may have weight for the purposes of extenuation, where the facts do not render valueless a denial of such intention. A denial of intention to disobey the order of the court in a proceeding for a civil contempt may also operate to mitigate the punishment for such disobedience, if the party so disobeying stands ready to perform such order, but, if he does not so stand ready, his declarations of lack of intent to be guilty of disrespect to the court entering such order in disobeying it are of no avail.63 Denying any disrespectful design or intent in publications or utterances reflecting on proceedings before the court, or on the court, is only excuse, but will not justify the person writing or speaking the same, if the publications or utterances be, in the opinion of the court, contemptuous.64 But it is held that a supposed contempt,

eo Buck v. Buck, 60 Ill. 105; Loven v. People, 158 Ill. 159, 42 N. E. 82; Crook v. People, 16 Ill. 534; United States v. Sweeney, 95 Fed. 434; In re Debs, 158 U. S. 594; United States v. Debs, 64 Fed. 725; State v. Harper's Ferry Bridge Co., 16 W. Va. 864; Magennis v. Parkhurst, 4 N. J. Eq. 433; Underwood's Case, 2 Humph. (Tenn.) 46; Jackson v. Smith, 5 Johns. (N. Y.) 115; Wells v. Com., 21 Grat. (Va.) 500.

61 Wartman v. Wartman, Taney, 362, Fed. Cas. No. 17,210; Hughes v. People, 5 Colo. 436; State v. Simmons, 1 Ark. 265; In re Terry, 36 Fed. 419.

62 Thompson v. Pennsylvania R. Co., 48 N. J. Eq. 105, 21 Atl. 182; Spokes v. Banbury Board of Health, L. R. 1 Eq. 42, 11 Jur. (N. S.) 1010. 63 In North Carolina the denial of intent to commit a contempt is held to purge the contempt. See In re Moore, 63 N. C. 397; Ex parte Biggs, 64 N. C. 202; In re Walker, 82 N. C. 95; Kron v. Smith, 96 N. C. 386, 2 S. E. 463.

6 People v. Freer, 1 Caines (N. Y.) 485; People v. Wilson, 64 [I

(561)