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SUTIN, Judge (dissenting).
I dissent.
A. Trial court lost jurisdiction to enter second order.
On July 2, 1974, the trial court entered a contempt order against Assistant City Attorney James Thompson for failure to produce witnesses pursuant to proper notice and court order. It provided that Thompson could purge himself of this contempt by producing, immediately, witnesses already noticed for depositions. The order decreed that Thompson shall pay from his personal funds into the court registry before the close of business each day that the office is open the sum of $50.00 per day as long as Thompson continues with noncompliance. The court said this was a civil contempt order.
On July 30, 1974, Thompson filed a notice of appeal from this order of contempt.
On August 1, 1974, the trial court issued an order to show cause on August 9, 1974 why Thompson and/or the City should not be required to pay attorney fees and costs for failure and refusal to proceed in accordance with the court’s prior orders.
On August 9, 1974, a hearing was held.
The court recognized that Thompson had appealed the contempt order.
On August 12, 1974, the court entered its order that Thompson and the City were jointly and severally liable to plaintiffs for attorney fees incurred to date and to be incurred in taking depositions of three witnesses.
Section 21-12-3 (a) (4), N.M.S.A.1953 (1974 Int.Supp.) provides:
In civil actions, any party aggrieved may appeal to the appropriate appellate court within thirty days after entry of
jjí ífC 5}í íjí
(4) Judgment in any proceeding for civil contempt.
The order of July 2, 1974 was final and appealable. Upon the filing of the notice of appeal from the order, the trial court lost jurisdiction of the case, except for purposes of perfecting the appeal to this Court. State v. Maples, 82 N.M. 36, 474 P.2d 718 (Ct.App.1970); State v. Clemons, 83 N.M. 674, 496 P.2d 167 (Ct.App.1972); Deats v. State, 84 N.M. 405, 503 P.2d 1183 (Ct.App.1972) (Sutin, J., specially concurring).
The order of August 12, 1974 was void. National American Life Insurance Co. v. Baxter, 73 N.M. 94, 385 P.2d 956 (1963).
B.Thompson was convicted of criminal contempt, not civil contempt.
The trial court stated that the contempt order of July 2, 1974 was civil contempt. The contempt order decreed that Thompson shall pay from his personal funds into the court registry the sum of $50.00 per day during noncompliance with the court’s order. This is criminal contempt.
Thompson was not a party to the action. He was found guilty of an act in resistance of the order of the court. His case therefore comes more fully within the punitive rather than the remedial class. The fine was payable to the court registry, not to the opposing parties. This is criminal contempt because its primary purpose is punishment. Civil contempt occurs where the purpose of the proceeding is primarily compensatory or by way of reimbursement to the opposite party for expenses growing out of the alleged contempt. Costilla Land & Investment Co. v. Allen, 15 N.M. 528, 110 P. 847 (1910); State v. Greenwood, 63 N.M. 156, 315 P.2d 223 (1957).
International Min. & C. Corp. v. Local 177, U. S. & A. P. W., 74 N.M. 195, 392 P.2d 343 (1964) says:
The general rule is that an accused in a criminal contempt proceeding is presumed innocent until found guilty beyond a reasonable doubt by evidence introduced and a defendant in a criminal contempt proceeding cannot be compelled to testify against himself. Since a wilful disobedience of a court’s order is punishable by traditional criminal proceedings and is sometimes referred to as quasi-criminal, the essential rights of the accused must be preserved and safeguarded. [Citations omitted]. [74 N.M. at 199, 392 P.2d at 346].
C. The order of criminal contempt is an appealable order.
Criminal contempt is a crime in the ordinary sense. Thompson had the right to appeal from that order. State v. Watson, 82 N.M. 769, 487 P.2d 197 (Ct.App.1971).
D. Thompson was not guilty of criminal contempt.
The record shows that the “hearing” held on July 2, 1974 was not an evidentiary hearing. Thompson was not found guilty beyond a reasonable doubt.
Document Info
Docket Number: 1721
Citation Numbers: 540 P.2d 254, 88 N.M. 324
Judges: Wood, Sutin, Hernandez
Filed Date: 8/6/1975
Precedential Status: Precedential
Modified Date: 11/11/2024