jured thereby.30 If a contempt be criminal in its nature, it is unimportant whether injury to the complainant is shown by violation of the injunction or not.31

§ 542. Form of information against contemnors.

Charles L. Wilson and Andrew Shuman.

And now come the said people, by Washington Bushnell, attorney general, and represent to the court that on the 16th day of October, A. D. 1872, there was and still is pending in this court a certain cause for the adjudication and determination of this court, wherein one Christopher Rafferty is plaintiff in error and the people of the state of Illinois are defendants in error, and that, on the same day, there was published in the city of Chicago, in said state, a certain daily newspaper, called the “Chicago Evening Journal," of which said paper on said day the said Charles L. Wilson was proprietor, and said Andrew Shuman was editor, and that said Charles L. Wilson and Andrew Shuman, on the said day, caused to be published in said paper, of and concerning said cause so pending in this court, and of and concerning this court and its supposed action, with reference to said cause, a certain article in the words following; that is to say: Here insert the article.] ·

Wherefore the said attorney general, for and on behalf of the said people, moves this court for a rule upon the defendants, Charles L. Wilson and Andrew Shuman, to be and appear before this court on a day to be named, and show cause, if any they or either of them have, why an attachment should not issue against them for a contempt of this court in respect to the publication of said article. Washington Bushnell, Attorney General.32

30 People v. Diedrich, 141 Ill. 665, 30 N. E. 1038, citing High, Inj. § 1420; Hawley v. Bennett, 4 Paige (N. Y.) 163; led. 376.

Secor v. Singleton, 35

31 Glay v. People, 94 Ill. App. 602; People v. Diedrich, 141 Ill. 665, 50 N. E. 1038.

32 This form was taken from People v. Wilson, 64 ill. 195-197. See, also, Gandy v. State, 13 Neb. 445, 14 N. W. 143. For forms of affidavit, an attachment for contempt, rule to show cause why person alleged to he guilty should not be attached, interrogatories propounded, and of nswer to interrogatories, see People v. Pearson, 4 Ill. 270. See, also, People v. Pearson, 3 Ill. 189.

§ 543. Form of petition for an attachment for disobeying an in

junction.

[Venue and address to the court.]

says that she is

A. B., etc., complains against C. B., of, etc., and the wife of said C. B., and on the day of -, 1876, she caused to be filed, in the office of the clerk of said court for said county, her libel praying for a divorce from said C. B., and for other relief for the causes therein set forth; and upon her petition a writ of injunction was duly issued by said justice on the day of

enjoining and prohibiting said C. B. from imposing any restraint upon her personal liberty during the pendency of said libel, and was duly served upon said C. B. on the

day of

Yet the said C. B., well knowing the premises, but wholly regardless of the said injunction, on, etc., at, etc., with force and arms, made an assault upon said A. B., and beat and bruised her, and imprisoned and deprived her of her personal liberty for the space of days, from said, etc., to, etc., in contempt of said injunction, and against the peace and dignity of the state.

Wherefore she prays that said C. B. may be held to answer for said contempt and that justice may be done in the premises.

[Verification.]33

§ 544. Notice and initial process.

A. B.

Upon proceedings against an alleged contemnor he must have due and reasonable notice in order that he may make his defense, and such notice should be shown by the record; and it is held that a proceeding without such notice is void.34 It is held by some authorities that this notice must be separate and distinct from the original proceedings;35 while by other authorities it is deemed that a party once brought into court is presumed to remain there, and to be cognizant of every subsequent step

33 This form is prescribed by the rules of the supreme court of New Hampshire, 56 N. H. 620, where a bill is termed a "libel."

34 Rawson v. Rawson, 35 Ill. App. 505; Holcomb v. Cornish, 8 Conn. 374; Worcester v. Truman, 1 McLean, 483, Fed. Cas. No. 18,043; Gray v. Chicago, I. & N. R. Co., Woolw. 63, Fed. Cas. No. 5,713; People v. Turner, 1 Cal. 152; Ex parte Ireland, 38 Tex. 344; State v. Judges of Civil District Court, 32 La. Ann. 1256. See Ex parte Langdon, 25 Vt. 680.

35 State v. Matthews, 37 N. H. 450.

taken in the cause, unless considerable time has elapsed without taking any steps in the case.36

The initial process in use in the United States in contempt proceedings is stated by a learned writer on the subject to be of four classes:37

(1) Notice of motion that a party stand committed. For the violation of injunctions, the English practice was to serve personally on the party to be affected a notice of a motion that he may stand committed to prison, and upon such motion an order for the committal was made; and it is said that it is not the rule, either in England or the federal courts, to enter an order to show cause why an attachment should not issue for a breach of the injunction.38

(2) An order nisi that a party stand committed. Under the English practice, it is said that a complainant might obtain an ex parte order that a defendant stand committed on a certain day unless he show cause to the contrary.39 This procedure is said to be uncommon in this country,40 and to obtain in few jurisdictions.41

(3) Attachment in the first instance. A party may be proceeded against in the first instance by an attachment, which is merely a process to arrest the body of the person complained of, and bring him before the court to show cause why he should not be adjudged guilty, and punished for the contempt.42

36 Petrie v. People, 40 Ill. 334; O'Callaghan v. O'Callaghan, 69 Ill. 552; Barclay v. Barclay, 83 Ill. App. 366, 184 Ill. 471, 56 N. E. 821. 37 Rapalje, Contempt, § 97 et seq.

38 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 1683, 1685; Angerstein v. Hunt, 6 Ves. 488; Worcester v. Truman, 1 McLean, 483, Fed. Cas. No. 18,043; Gray v. Chicago, I. & N. R. Co., 1 Wooiw. 63, Fed. Cas. No. 5,713; Gates v. McDaniel, 3 Port. (Ala.) 356. The practice in the United States courts for the northern district of Illinois is to conform to the state procedure of entering a rule to show cause.

Biss. 490, Fed. Cas. No. 4,643.

39 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1685.

40 Rapalje, Contempt, § 99.

Fanshawe v. Tracy, 4

41 This proceeding was recognized in Ex parte Petrie, 38 Ill. 498. See Wheeler v. Harrison, 57 Ga. 24; Crow v. State, 24 Tex. 12.

42 Ex parte Petrie, 38 Ill. 498; Ex parte Langdon, 25 Vt. 680; Petrie

(4) Rule to show cause. The most usual course is a rule to show cause why an attachment should not issue against the party proceeded against,13 or why he should not be adjudged guilty, and punished for contempt.14 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

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.

48 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.

$546. The writ of attachment and bail.

E. D. S.,

Judge.52

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.