Jennings v. Jennings , 104 S.C. 242 ( 1916 )

April 13, 1916. The opinion of the Court was delivered by In an action in which L.D. Jennings was plaintiff and F.O. Jennings, Ulric Jennings, and others were defendants, it was adjudged, on November 22, 1912, that L.D. Jennings had the right to erect and maintain gates across a neighborhood road running through his lands, under section 1966, vol. I, Civ. Code 1912, and defendants were enjoined from interfering with the gates, except to open and close them in using the road. From this judgment notice of appeal was given by both sides, but nothing further was done toward perfecting the appeal. On February 8, 1915, on affidavit, showing that F.O. Jennings and Ulric Jennings had recently violated the injunction, by opening the gates and leaving them open, the Court ruled them to show cause, on February 11th, why they should not be attached for contempt. In their returns, they denied leaving the gates open, and denied notice or knowledge of the injunction. The Court found them guilty of contempt, and imposed upon each of them a fine of $20, or imprisonment for 15 days. Two hours after the hearing, and after the judgment in contempt had been signed, defendants offered another affidavit of C.M. Burkett, who had already made an affidavit in the case, tending to show that the gates were not constructed according to the requirements of the statute. The second affidavit was also as to the manner of construction and operation of the gates. The Court refused to receive or consider the second affidavit. From the judgment in contempt, defendants appealed.

The reception and consideration of the second affidavit of Burkett, or its rejection, was within the discretion of the Court; and it does not appear that the discretion was abused or erroneously exercised. No reason whatever is assigned why the facts stated in the second affidavit were not stated in the first.

The contempt of which defendants were found guilty was a criminal contempt; the purpose being to punish them for disobedience of the injunction and maintain the dignity of the Court. Therefore, even if the injunction should be reversed or set aside on appeal, the contempt would not fall with it, unless the judgment was void for want of jurisdiction, either of the subject of the action or of the defendants. State v. Nathans, 49 S.C. 199,27 S.E. 52. That the Court had jurisdiction of the subject of the action cannot be questioned; that it had jurisdiction of defendants has not been questioned.

An appeal from an order of injunction does not operate as a supersedeas. Such a doctrine would completely destroy the effectiveness of the remedy by injunction. Klinck v.Black, 14 S.C. 241; 2 High on Injunctions, sec. 1413. The orders of the Court, even though erroneous, must be respected and obeyed, until vacated or modified by competent authority. Watson v. Bank, 5 S.C. 159;State v. Nathans, supra.

Section 395 of the Code of Procedure, which is relied upon by appellants, is not applicable. The legislature did not intend by that section that an appeal from an order of injunction should have the effect of suspending or superseding the order. It was only intended that, in cases not therein provided for, an appeal shall "stay proceedings in the Court below," pending the appeal.

The Court found that defendants had actual notice of the injunction. As there was evidence to support the finding, the question is not open to review. State v. Nathans,supra. The same observation may be made upon the question whether the gates were constructed according to the requirements of the statute. But the authorities above cited show that, even if they were not so constructed and maintained, it was, nevertheless, the duty of defendants to respect and obey the order of the Court, until it was vacated or modified in a regular way.

The fact that the gates had been left open for several months during the season when there were no crops in the fields affords no excuse to defendants to open them and leave them open, when they knew that they had been closed to protect crops that had been planted in the fields.

The constitutionality of the statute allowing gates to be erected and maintained is not properly before the Court in this proceeding. 2 High on Injunctions, sec. 1416.

Judgment affirmed.

April 13, 1916.

On petition for rehearing the following was filed