Edrington v. Pridham , 1886 Tex. LEXIS 717 ( 1886 )

Robertson, Associate Justice.

In the suit of Ayres & Cannon and others against the Texas Continental Meat Company, the •plaintiffs prayed for the appointment of a receiver, and the court, having jurisdiction of the subject matter and the parties, acted within its power in granting that relief. If, in making the appointment, the court proceeded upon an insufficient showing, the order wag erroneous and subject to revision, but not void or open to collateral attack. Dean v. Thatcher, 32 N. J. L. 470; Wood v. Blythe, 46 Wis. 650.

The plaintiff in error, having notice of the order made in the main case, as the secretary of the Continental Meat Company, was bound in duty to obey the order and turn over to the receiver on demand the company’s property, which included money in his possession. Lanshaw v. Tracy, 4 Bissell 490. A decent respect for the authority of the court would have dictated the propriety of an appeal to it for the solution of any real doubt as to the extent of the order. For an agent of the company to act upon a questionable and technical construction of the words of the order, and place himself in a position in which he cannot comply if it is determined that his interpretation is wrong, is rashly contemptuous. That he has proceeded under the advise of counsel may mitigate, but cannot excuse, the offense. R. R. Co. v. Johnson, 8 Stew. (N. J.) 422; Smith v. Cook, 39 Ga. 191; Capet v. Parker, 3 Sandf. (N. Y.) 662. He, nevertheless, knew that he was disobeying the order, unless its true intent should happen to be his restrictive interpretation.

The proceeding for contempt can properly end only in a judgment of acquittal and discharge, or conviction and sentence. The punishment is by fine or imprisonment, or both. R. S., art. 1120; Rapalji on Cont., sec. 128. The proceeding is generally regarded as a prosecution for an offense. Id. sec. 95; Passmore Williamson’s case, 26 Pa. St. 1. We find no authority for awarding in such proceeding, as a softer penalty, or as a means to the same end, a judgment in favor of the private prosecutor for a sum of money to be collected by execution. In some jurisdictions for contempt in civil cases, depriving a litigant of some right, the court is authorized by statute to require the offender to restore the status quo, or pay the damages, but the order is enforced by commitment. Robins v. Frazier, 5 Heisk. (Tenn.) 100; Re Day, 34 Wis. 638.

The statute authorizes the district court to impose for contempt a fine not exceeding $100. But if this limitation is unauthorized (Rapalji, sec. 11) we cannot construe a judgment in favor of the receiver for $2,500, to be collected by execution, as an exercise by the court of its inherent power to fine for contempt. Such a judgment does not vindicate the dignity of the court; it redresses private injury. The prosecution of the plaintiff in error for contempt did not warrant the civil judgment against him.

It yet remains to be determined whether the proceedings may not be considered as a civil suit sufficient to support the judgment. The receiver’s affidavit states facts sufficient to show the civil liability, and the answer confesses enough of them to warrant in a regular suit the judgment rendered. But there was no prayer for any such judgment, the receiver did not consider his affidavit or motion as the institution of a suit against the plaintiff in error; it is not entitled as a separate case, but as a part of the original suit; it is not signed by counsel, or docketed; no citation is prayed, but instead an order to show cause is asked, returnable during the term then pending; the prayer is, that, upon hearing, the respondent be ordered to turn over the money to the receiver, to be enforced by the infliction of the penalties for contempt.

The court did not consider the proceeding as a regular suit; but it directs the issue of an order to show cause returnable during the current term, and sets the hearing for the day during the term when the main case is called. The respondent treated the proceeding as a prosecution for contempt; he filed his answer in the form of an affidavit entitled in the original suit, and seems to have made no further appearance. At the next term the court ordered that the “motion” be continued. More than twelve months after the respondent’s answer was filed, the receiver’s “motion” came on to be heard, and the motion, answer and proofs (supposed to have been Johnson’s affidavit) “being examined by the court,” the judgment complained of was rendered. The language of the judgment does not indicate that there was a trial as in regular suits A judgment has been entered, such as only a civil suit would authorize in a proceeding which neither the court nor either of the parties considered or treated as a civil suit in its commencement, or progress, or trial. Such a judgment would scarcely be void, but it is surely irregular. The proceeding commenced by the receiver could have been changed into a regular suit in its progress, but to warrant the judgment the metamorphosis should be complete before trial. Valuable rights in the practice and mode of proceeding may depend upon the nature of the proceeding. These rights are lost if the case is treated by the court and the parties, in its progress and trial, as one kind of suit, and in the final judgment it is treated by thecourtas anothersortof suit. The judgment rendered was not prayed for by the receiver, it was not warranted by the proceedings upon which it is predicated, and must be reversed, and, that the district court may make such orders as will accomplish the merits of the case, the cause is remanded.

Reversed and Remanded.

[Opinion delivered March 5, 1886.]