said David S. Terry, by reason of said acts, was and is guilty of contempt of the authority of this court, committed in its presence on this third day of September, 1888.

And it is further ordered that the said David S. Terry be punished for said contempt by imprisonment for the term of six months.

And it is further ordered that this judgment be executed by impris onment of the said David S. Terry in the county jail of the county of Alameda, in the state of California, until the further order of this court, but not to exceed said term of six months.

And it is further ordered that a certified copy of this order, under the seal of the court, be process and warrant for executing this order.86

558. Mode of punishment.

In order to enforce obedience to a decree, the court may imprison or fine the offender, or do both, as to it, under all the circumstances, seems just and best calculated to compel obedience.s 87 The power to commit a party for failure to comply with any decree, when there is no valid ground for regarding him as in contempt, should not be resorted to unless there are no reasonable means for its enforcement.88 It is said that an officer of a private corporation is not liable to punishment for contempt of court solely because of his refusal to act without authority from the corporate body, upon an order of court directed against the corporation alone.89 Where the act of contempt does not appear to be at all willful or defiant, but merely the exercise of a supposed right under advice taken and given in good faith, it does not deserve punishment as such, but the party should make the complainant whole as to the damages sustained thereby."0

86 Ex parte Terry, 128 U. S. 289. For further forms of orders punishing contempts, see Ex parte Savin, 131 U. S. 267; Fischer v. Hayes, 6 Fed. 63.

87 Leopold v. People, 140 Ill. 558, 30 N. E. 348; French v. Commercial Nat. Bank, 79 Ill. App. 110.

88 Hughson v. People, 91 Ill. App. 396; Goodwillie v. Millimann, 56 III. 523.

89 Hughson v. People, 91 Ill. App. 396; Rex v. Windham, 1 Cowp. 377. See, also, McKim v. Odom, 3 Bland (Md.) 407, 415; Southern Development Co. v. Houston & T. C. Ry. Co., 27 Fed. 345.

90 Rapalje, Contempt, § 49, quoted in French v. Commercial Nat. Bank, 79 Ill. App. 110.

§ 559. Effect of being in contempt.

91

As a general rule, one who is in contempt cannot be heard by motion, or otherwise, except for the purpose of purging his contempt, until he has cleared his contempt and paid the costs, but this rule has been held to refer to applications addressed to the favor of the court, and not to matters of right.92 The party in contempt may point out the irregularity or impropriety of any application made by his antagonist.93 It is held in many jurisdictions that one in contempt has no right to be heard in defense of a suit in which he has been so adjudged, without leave of court,94 but this rule has been denied by other courts.95 It is held that the court has power to strike out the defense where the defendant is in contempt for refusing to obey orders of the court;96 but the supreme court of the United States holds that a court has not the right to summon a defendant to answer, and then, after obtaining jurisdiction by the summons, refuse to allow the party summoned to answer, or to strike his answer from the files, suppress the testimony in his favor, and condemn him without consideration thereof and without a hearing, on the

91 Freese v. Swayze, 26 N. J. Eq. 437; Wartman v. Wartman, Taney, 362, Fed. Cas. No. 17,210; Atchison, T. & S. F. R. Co. v. Jennison, 60 Mich. 232, 27 N. W. 6. One in contempt for disobedience of an injunc tion cannot have a hearing on a motion for its dissolution, but when the nature and extent of the punishment to be inflicted depend on the determination of the question whether the injunction shall be continued, or dissolved, the motion may be entertained. Crabtree v. Baker, 75 Ala. 91, 51 Am. Rep. 424; Endicott v. Mathis, 9 N. J. Eq. 110; Jacoby V. Goetter, 74 Ala. 427. See, also, supra, §§ 417, 523.

92 Hovey v. Elliott, 167 U. S. 409; Pickett v. Ferguson, 45 Ark. 177; Walker v. Walker, 82 N. Y. 260.

93 Hovey v. Elliott, 167 U. S. 409; Valle v. O'Reilly, 1 Hogan, 199.

94 Lane v. Ellzey, 4 Hen. & M. (Va.) 504; Mussina v. Bartlett, 8 Port. (Ala.) 277; Saylor v. Mockbie, 9 Iowa, 209; Gant v. Gant, 10 Humph. (Tenn.) 464, 53 Am. Dec. 736.

95 Hovey v. Elliott, 167 U. S. 409; Gordon v. Gordon, 141 Ill. 160, 30 N. E. 446.

96 Zimmerman v. Zimmerman, 7 Mont. 114, 14 Pac. 665; Walker v. Walker, 82 N. Y. 260; Barney v. Barney, 6 D. C. 1.

theory that he has been guilty of a contempt of court.97 A mere failure to comply with the provisions of an interlocutory order is not such a contempt as will preclude the party from moving to discharge such order and set aside the proceedings for irregularity.98 Where appeal from an order or decree is authorized, the fact that the party is in contempt for not executing it does not prevent such appeal.99

560. Review of contempt proceedings.

There is a conflict of authority on the question whether or not the order of the court punishing one for contempt is reviewable on appeal or writ of error. It is held, in many jurisdictions, that the adjudication for contempt, and the punishment thereof, belong exclusively to each respective court, and that one court cannot review a judgment for contempt committed against another.100

97 Hovey v. Elliott, 167 U. S. 409. See, also, Gordon v. Gordon, 141 Ill. 160, 30 N. E. 446; Hovey v. Elliott, 145 N. Y. 126, 39 N. E. 841; Peel v. Peel, 50 Iowa, 522; People v. Horton, 46 Ill. App. 434.

98 Peltier v. Peltier, Har. (Mich.) 19; Hill v. Bissel, Mos. 258. "People v. Horton, 46 Ill. App. 434; State v. Field, 37 Mo. App. 83; Wharton v. Stoutenburgh, 39 N. J. Eq. 299; Hazard v. Durant, 11 R. I. 195; Johnson v. Superior Court of City & County of San Francisco, 63 Cal. 578; Ricketts v. Mornington, 7 Sim. 200; Bickford v. Skewe, 10 Sim. 193; People v. Prendergast, 117 Ill. 588, 6 N. E. 695.

100 New Orleans v. Steamship Co., 20 Wall. (U. S.) 387; Crosby's Case, 3 Wils. 188; Ex parte Kearney, 7 Wheat. (U. S.) 38; Shattuck v. State, 51 Miss. 50, 24 Am. Rep. 624; Watson v. Williams, 36 Miss. 331; Ex parte Hardy, 68 Ala. 303; State v. Tipton, 1 Blackf. (Ind.) 166; People v. Owens, 8 Utah, 20, 28 Pac. 871; Vilas v. Burton, 27 Vt. 56; Craig v. McCulloch, 20 W. Va. 148; Phillips v. Welch, 12 Nev. 158; Lockwood v. State, 1 Ind. 161; Baldwin v. Miles, 58 Conn. 496, 20 Atl. 618. In Illinois it is held that judgments of courts of record in contempt cases are subject to review (Kyle v. People, 72 Ill. App. 171), and that, where a proceeding for a contempt is for the purpose of relief between the parties to the bill in chancery, an appeal will lie from the order of the court, either in imposing a fine or discharging the defendant (People v. Diedrich, 141 Ill. 665, 30 N. E. 1038). It is also held that a judgment rendered in contempt proceedings is reviewable by writ of error. Rawson v. Rawson, 35 Ill. App. 505. See, also, Lester v. People, 150 Ill. 408, 23 N. E. 387, 37 N. E. 1004, holding that, if

In many cases, orders in contempt cases are reviewed by the writ of habeas corpus.101 It is held by the supreme court of the United States that the writ of habeas corpus may be used to obtain the discharge of one imprisoned under the order of a court of the United States which does not possess jurisdiction. of the person or of the subject-matter, but that it may not be used to correct mere errors or irregularities, however flagrant, committed within the authority of the court;102 and that whether the facts justified the punishment of the offender is for the lower court to determine, and its conclusion upon such facts is not open to inquiry or review in proceedings by habeas corpus,103 It is held in some states that certiorari will lie.104 Upon review by habeas corpus, courts can deal only with such defects in the proceedings as render them not simply erroneous or irregular, but absolutely void, and the same rule is applied to the remedy of certiorari in some jurisdictions.105

the court, on defendant's refusal to comply with such order, attempts to enforce the same by the imposition of a fine, with an order for an execution for its collection, or by a definite term of imprisonment, as for a contempt of court, the judgment of the court imposing such fine or imprisonment will be final, and an appeal will lie from it. 101 Rawson v. Rawson, 35 Ill. App. 505; People v. Kelly, 24 N. Y. 75; Burnham v. Morrissey, 14 Gray (Mass.) 226; Holman v. City of Austin, 34 Tex. 668; Com. v. Newton, 1 Grant Cas. (Pa.) 453; Ex parte Terry, 128 U. S. 289; State v. Galloway, 5 Cold. (Tenn.) 326; Yates v. Lansing, 9 Johns. (N. Y.) 395.

102 Ex parte Terry, 128 U. S. 289. See, also, Ex parte Hardy, 68 Ala. 303.

108 Ex parte Terry, 128 U. S. 289.

For right to review Turner, 1 Cal. 152;

104 State v. Leftwich, 41 Minn. 42, 42 N. W. 598. contempt proceedings by certiorari, see People v. Tyler v. Connolly, 65 Cal. 28, 2 Pac. 414; State v. Judge of Civil District Court, 41 La. Ann. 314, 6 So. 539; State v. Lazarus, 37 La. Ann. 401; In re MacKnight, 11 Mont. 126, 27 Pac. 336, 28 Am. St. Rep. 451; Montgomery v. Muskegon Booming Co., 104 Mich. 411, 62 N. W. 561.

105 Ex parte Terry, 128 U. S. 289; Ex parte Kearney, 7 Wheat. (U. S.) 38; Ex parte Maulsby, 13 Md. 625; Phillips v. Welch, 12 Nev. 158. Mr. Rapalje, in his work on Contempts, says that two different views are entertained concerning the use of certiorari; one being that the writ is regarded as only intended to be used by the court of review in carrying out its superintending jurisdiction over the proceedings of the lower

court, and to bring up such proceedings when they were absolutely void for want of jurisdiction, and that this view is entertained in California, Louisiana, Nevada, and Utah, and that the other view is that the true office of the writ is the same as that of a writ of error, and authorizes the court of review to reverse or correct the judgment of the court below for errors of law of any kind, and that such is the doctrine in Arkansas, Iowa, and Pennsylvania. Rapalje, Contempt, § 154, citing People v. Dwinelle, 29 Cal. 632; Maxwell v. Rives, 11 Nev. 213; Young v. Cannon, 2 Utah, 560; Harrison v. State, 35 Ark. 458; State v. Myers, 44 Iowa, 580; Com. v. Newton, 1 Grant Cas. (Pa.) 453. In Nevada, it is held that, where a court acquired jurisdiction of the subject-matter and of the person of the petitioner, a court of review has no jurisdiction on appeal, writ of error, habeas corpus, or certiorari. Phillips v. Welch, 12 Nev. 158. Owing to the great confusion existing concerning the remedies of one adjudged guilty of contempt, the matter is largely regulated by statute; and as it is impossible to lay down any general rule on the subject, the statutes and decisions of each particular jurisdiction should be consulted relative to the remedy by appeal or error, habeas corpus, or certiorari, when the occasion presents itself. See, on this subject, Rapalje, Contempt, §§ 141-162.

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