Fowler v. Beckman , 66 N.H. 424 ( 1891 )

When an act is prohibited by a judicial order or decree, technically called an injunction, a person who knowingly violates the prohibition before he has formal notice of it, and before the order or decree is extended upon the record, is liable to arrest, and to the same penalty as if a copy of a writ of injunction had been read and delivered to him by a sheriff. Winslow v. Nayson, 113 Mass. 411, 420; High Inj., ss. 1421-1424, 1444. The order or decree is the injunction. Its legal effect does not depend upon the form of the oral or written communication by which it is made known to those whose aggression it prohibits. Formal notice of it is given for their information, and as a means of proving their knowledge. If they are aware that they are doing what they have been enjoined not to do, the law does not require the service of process or notice for the purpose or giving them information which they already have; but ready and sure proof of their knowledge may become convenient and useful if the plaintiff is compelled to apply for an attachment.

In Buffum's Case, 13 N.H. 14, 16, the remark that service of a copy of an injunction decree "is not sufficient to authorize an attachment," may be a mere statement of English practice quoted from 1 Smith Ch. Pr. 429, without consideration. In that case, writ of execution of the decree, as well as a copy of it, had been served, and an examination of the subject was unnecessary. "Injunctions may be ordered by the court, or by any justice thereof, by an order, and such order shall have the same force and effect in all respects as if a writ of injunction were issued." 37th Chancery Rule, and Chancery Forms 3, 13; 38 N.H. 613, 615, 619; 56 N.H. 612, 613,617. Other orders and decrees in equity were not named in the rule, for the reason that they were understood to be operative without writs of enforcement in cases in which writs are not required by statute. There is no more occasion for final process in the form of a writ in an injunction case than in any other equity suit. In this case, the respondents had full knowledge of the decree, and for the purpose of this proceeding their knowledge was as effective as if it had been derived from a writ of injunction. The want of process under seal is no defence to the complaint.

The plaintiffs in the bill in equity have such a legal title or possession that they have been successful in all suits brought upon or against it. The decree obtained by them against Beckman and Owen is no broader than the prayer of the unresisted bill, in any respect material to the present charge. The decree has not been reversed or vacated, and cannot be collaterally impeached. Fowler v. Brooks, 64 N.H. 423; State v. Kennedy,65 N.H. 247; People v. Sturtevant, 9 N.Y. 263. On the facts found without evidence of title in the town, if the vote of April 17, and the acts of the town agents, Owen and Perkins, are to be considered as corporate, municipal acts, they make the town an aider and abettor of Beckman and Owen in the violation of the decree. A further hearing may change the present aspect of the case; but on all the evidence that has been introduced, the respondents stand no better than they would if the vote had been merely and expressly to aid and abet Beckman and Owen in defying the law. As title is not shown in the town, it does not appear that the town's vote "to choose agents to lot off the beach and rent the same" contained any element of validity or legality. Without right or title, the town, as an accessory of Beckman and Owen, induced by them to take part with them in invading private property and resisting legal authority, is of no more avail than a private accomplice. If the operation of the decree could be suspended by the mere act of town or other person claiming title and putting the respondents in possession, it could be perpetually stayed by a succession of pretenders employed by Beckman and Owen to give them the shelter of groundless claims.

Perkins was not a party to the bill, and his name is not in the decree. But the decree properly enjoined the defendants, "their servants, aiders and abettors;" and as a copy of the decree was read to him and given to him, he knew that his subsequent acts as an aider and abettor of Beckman and Owen were prohibited, and he is liable for his violation of the decree as if he had been personally named therein. High Inj., ss. 1440-1443.

The complaint will be further heard at the trial term, where judgment will be rendered.

Case discharged.

DOE, C. J., and CARPENTER, J., did not sit: the others concurred.