Woods v. Winter , 252 Wis. 240 ( 1948 )

^* Motion for rehearing denied, with $25 costs, on May 11, 1948. This action was commenced on December 24, 1947. The order appealed from was made and entered January 2, 1948. In his complaint the plaintiff, after setting out certain sections of the Housing and Rent Act of 1947, and after alleging that the defendant had violated certain provisions of the act by depriving certain tenants of the right to occupy the premises and shutting off the service of heat, water, hot and cold, gas, and electricity in such quantities and at such times as are normal and necessary for the use and occupancy and beneficial enjoyment of the premises, the plaintiff further alleged that he had reason to believe and did believe that unless restrained and enjoined the defendant will continue to operate the described housing conditions in violation of the controlled housing-rent regulations. The plaintiff prayed relief as follows: First, temporary and permanent injunction restraining the defendant, her attorneys, agents, and servants and employees from discontinuing, withholding, suspending or shutting off, or threatening to discontinue, withhold, suspend, or shut off the aforesaid services, and requiring and directing the defendant to restore in full the services of heat and hot water, cold water, gas, electricity, and freedom of access to the premises, and any other services, furnishings, or equipment withheld, suspended, discontinued, or shut off, which were heretofore supplied for the use and occupancy of the above premises or any part thereof.

Upon filing of the verified complaint and affidavits of the plaintiff the court issued an order, briefly stated, requiring the defendant to show cause why temporary injunction should not issue enjoining the defendant, (a) from withholding, discontinuing or suspending, or threatening to withhold, discontinue, or suspend, the supply of heat, hot and cold water, gas, and electricity; (b) from withholding, discontinuing or suspending, or threatening to withhold, discontinue, or suspend any service or furnishing or equipment heretofore supplied with the use or occupancy of the leased premises; (c) requiring and directing the defendant to restore in full the heat, hot and cold water, gas, and electricity, and to allow freedom of access to the leased premises; (d) from removing or evicting, or threatening to remove or evict any tenant from the above premises or any part thereof. In addition the court issued a further order that pending the hearing and determination of the motion for temporary injunction the defendant, her attorneys, etc., were enjoined, (a) from withholding, discontinuing or suspending, or threatening to withhold, discontinue, or suspend the supply of heat, hot and cold water, gas, and electricity heretofore furnished to the rented premises; (b) from withholding, discontinuing, or suspending, or threatening to withhold, discontinue, or suspend any service, furnishing, or equipment heretofore supplied with the use and occupancy of the leased premises; (c) requiring and directing the defendant to restore in full the heat, hot and cold water, gas, and electricity, and to allow freedom of access to their premises, furnishing or equipment withheld, suspended, or discontinued, which was heretofore supplied with the use or occupancy of the leased premises; (d) from removing or evicting or threatening to remove or evict any tenant from the leased premises. This order was in part a restraining order and in part a mandatory order requiring the defendant to do certain things pending the hearing on the motion for temporary injunction.

The summons, complaint, and order to show cause were served upon the defendant on the 24th day of December, 1947; the order to show cause was returnable on December 30, 1947, at 11 a.m. Upon the return day, December 30, 1947, at 11 a.m. the defendant appeared by counsel, and at the "moment of opening court" and in proper form filed an affidavit of prejudice against the presiding judge. The presiding judge then declared that the filing of the affidavit did not stop him from deciding whether the restraining order had been violated. At some time prior to 11 a.m. December 30th the court issued an order requiring the defendant to show cause why she should not be punished for contempt, as the court deems just, for misconduct and in disobeying an order of this court dated December 24, 1947. This second order to show cause was also returnable on December 30, 1947, at 11 o'clock a.m., but had not been served.

The court then proceeded to take testimony relating to the violation of the court's restraining order, thereupon filed findings of fact and conclusions of law, and entered the following order: "It is ordered that an attachment of arrest directed against the defendant, Bessie Winter, be issued to the sheriff Dane county." Thereupon a warrant of arrest dated December 31, 1947, at 4 p.m. was issued returnable forthwith but not served. The defendant came into court with her counsel voluntarily, where she was served, and filed a second affidavit of prejudice. On its own motion the court amended the writ attachment to make it returnable on January 2, 1948, at 10 o'clock a.m. At that time the defendant was adjudged to be guilty of contempt and sentenced to be imprisoned in the common jail of said county until the said Bessie Winter has the heat, light, gas, water, and other services restored at her apartment building at 901 Spaight street, Madison, Wisconsin, and gives access to the building to all her tenants, said sentence not to exceed six months. And on the same day she was committed in accordance with the sentence of the court. She was subsequently released on bail. The defendant appeals from the sentence and order made and entered on January 2, 1948, directing that the defendant be committed to jail. On this appeal it is the contention of the defendant that the presiding judge, against whom the affidavit of prejudice was filed, on the return day of the order to show cause why a temporary injunction should not issue, had no jurisdiction or power to proceed further in the action and for that reason the order made by the court on January 2, 1948, was null and void.

Sec. 261.08 (1), Stats., provides:

"The court shall change the place of trial to an adjoining circuit upon the application of any party, who shall file his affidavit, that he has good reason to, and does believe, that he cannot have a fair trial on account of the prejudice of the judge, naming him, or the court may retain the action until the end of the current term; and in the meantime shall request the chairman of the board of circuit judges to call some other circuit judge to attend and hold court," etc.

In the case of State v. Bohner, 210 Wis. 651, 655,246 N.W. 314, it was held:

"There can be no question of the validity of defendant's contention that the affidavit of prejudice, if valid and sufficient, deprives the county judge of all jurisdiction except to make a proper order of removal or to call in another judge in obedience to the statutes." (Citing.)

It was conceded upon the oral argument that the affidavit of prejudice filed in this case was timely and sufficient. We have for consideration and decision then the question: What was the effect of the filing of the first affidavit of prejudice?

The plaintiff contends that the statute authorizing a change of venue, or the calling in of another judge when a party files an affidavit of prejudice, does not apply in contempt proceedings. The difficulty with that contention is that at the time of the filing of the first affidavit of prejudice in the action commenced by the plaintiff by summons and complaint, no contempt proceedings were pending. While it appears from the recitals contained in the record that the plaintiff had exhibited evidence tending to show that the defendant had violated the restraining order, it does not appear that any proceedings were had pursuant to the second order requiring the defendant to show cause why she should not be punished for contempt until after the affidavit was filed. Apparently, from the record, the defendant appeared on the return day at 11 a.m. in response to the order to show cause issued on December 24th, and at the moment of opening court she filed an affidavit of prejudice and withdrew. There is in the record no evidence that the defendant was served with the order to show cause why she should not be punished for contempt. However, as already stated, at about 4 o'clock p.m. on December 31st, the defendant appeared in court voluntarily with her counsel. She was shown the so-called writ of attachment which was issued on the 31st day of December and returnable forthwith. She then filed a second affidavit of prejudice, declined to offer any evidence in response to the order to show cause, and withdrew from the proceeding. At that time the court, of its own motion, amended the writ of attachment to make it returnable January 2, 1948, at 10 o'clock a.m., at which time the defendant was present in person with her counsel. The court having already taken the evidence and made findings of fact and conclusions of law, the defendant's counsel declining to offer evidence, the court sentenced the defendant to the county jail and a commitment was issued, as already stated.

This is a proceeding for civil contempt under ch. 295, Stats. Sec. 295.04, Stats., provides:

"In a case specified in either section 295.02 or 295.03 the court may, in its discretion, and in all other cases the court shall, upon being satisfied by affidavit of the commission of the misconduct, either make an order requiring the accused party to show cause at some reasonable time to be therein specified why he should not be punished for the alleged misconduct or shall issue an attachment to arrest such party and to bring him before such court to answer for such misconduct."

Sec. 295.05, Stats., provides:

"Such an order to show cause can only be made in an action or special proceeding in the same court, but it may be made either before or after the judgment in the action or the final order in the special proceeding, and is equivalent to a notice ofmotion; and the subsequent proceedings thereon shall be taken in the action or special proceedings as upon a motion made therein. When an attachment shall be issued it shall, be deemed an original special proceeding against the accused in behalf of the state upon the relation of the complainant."

In this case the trial court elected to proceed under the first clause of sec. 295.05, Stats., by an order requiring the defendant to show cause why she should not be punished for contempt of court. This second order was also made returnable before the court at 11 a.m. on December 30th, but it does not appear to have been served prior to that time. At 11 o'clock the defendant filed the first affidavit of prejudice. Thereafter, according to the recitals in the record, the defendant appeared at 11:20 in response to the second order to show cause and filed a second affidavit of prejudice, withdrew from the proceedings and took no further part therein.

It is true that the court, after taking evidence and making findings of fact and conclusions of law, ordered that an attachment of arrest be issued."

An attachment is the taking into the custody of the law the person or property of one already before the court or of one whom it is sought to bring before it. In this case the defendant had already been served with a summons and complaint and appeared in response to the order to show cause why a temporary injunction should not issue, and filed an affidavit of prejudice. She was already before the court and the so-called attachment of arrest was in fact a warrant issued to bring the defendant before the court for sentence and commitment. The contempt proceeding had already been instituted by an order to show cause. It is, therefore, clear that the contempt proceeding in this case was not an original special proceeding because not begun by attachment as provided by sec. 295.05, Stats.

The contempt proceedings in this case being in the action, and not an original special proceeding, we have no occasion to consider the effect of the filing of the second affidavit of prejudice. Nor is there any occasion to consider whether sec. 261.08 (1), Stats., applies to a contempt proceeding begun by attachment.

That part of sec. 295.05, Stats., already quoted provides that when an order to show cause is issued in an action that it is equivalent to a notice of motion and the subsequent proceedings thereon shall be taken in the action. It is considered, therefore, that the contempt proceedings being in the action and instituted subsequent to the filing of the affidavit of prejudice, that the presiding judge against whom it was filed had no further jurisdiction to proceed in the action except to change the venue of the action or call in another judge in accordance with the provisions of the statute.

The court being without jurisdiction, the order to show cause why the defendant should not be punished for contempt and the order adjudging the defendant guilty of contempt was null and void.

By the Court. — The order appealed from is reversed, and the cause remanded to the trial court with directions to discharge the defendant and for further proceedings according to law.