Warner v. Martin

•Fish, C. J.

(After stating the foregoing facts.) 1. One of the assignments of error is, that the court erred in admitting in evidence affidavits offered by petitioner against defendants, over the objection that the proceeding was quasi-criminal, and only oral testimony was admissible. In Welch v. Barber, 52 Conn. 147, it was said: “A civil contempt is one in which the conduct constituting the contempt is directed against some civil right of the opposing party, as where an injunction is disregarded or some act required by the court for the benefit of the other party should be neglected. In •cases of contempt of this sort the proceeding for its punishment is at the instance of the party interested and is civil in its character.” In such cases the general rule seems to be, that the question of contempt or no contempt may be decided upon affidavits, where the chancery rule is in force that the answer of the contemner is not conclusive. Bapalje on Contempts, §§120, 126. “In proceedings for contempt for the violation of an injunction, the usual method of proving the fact of violation is by affidavit.” 2 High on Inj. §1452. See also 1 Beach on Inj. §262; State v. Harper’s Ferry Bridge Co., 16 W. Va. 464; Una v. Dodd, 38 N. J. Eq. 460; Witter v. Lyon, 34 Wis. 564; People v. Brower, 4 Paige (N. Y.), 405; State v. Mitchell, 3 S. D. 223; Rutherford v. Metcalf, 5 Hayw. (Term.) 58. So far as we know to tbe contrary it has been tbe practice in tbe courts of this State to admit affidavits in evidence on the hearing of proceedings for contempt for the violation of an injunction. Among the cases where such practice was followed may be cited, Howard v. Durand, 36 Ga. 346, Thweatt v. Gammell, 56 Ga. 98, and Hayden v. Phinizy, 67 Ga. 758. The same practice has been followed in proceedings for contempt in not paying over money, etc., to a receiver. Ryan v. Kingsbery, 88 Ga. 361. So far as we are advised, the question as to the admissibility of affidavits on the hearing in such proceedings has never been heretofore made in our courts. We are of opinion, however, from what we have said above, that affidavits are admissible in such a case, and that the court did not err in so ruling. We do not hold, however, that the judge could not in his discretion require witnesses to testify orally.

2. The evidence was to the effect that the defendants, after the restraining order was served upon them, continued the work of constructing the dam. One of the defendants testified: “We continued to make the excavation after the papers were served. After the excavation was made we began to put in timber and rock for the dam and bolted them down to the bed. That was a part of the work of constructing the dam.” There was evidence for the petitioner that logs were placed in the main dam, within the coffer-dam, and bolted or chained down, and that such logs were above the water. The contention of the defendants was, that as the language of the order restrained them “from erecting the obstructions in or across the Chattahoochee river, as complained of in this petition,” laying a foundation of the dam, in an excavation which was within the coffer-ddm, and at a place where the river was not then running, but from which defendants had diverted it before the original petition was filed, was not an obstruction in or across the river, especially if, as they contended, such foundation was not built above the bed of the river. A restraining order has all the force of an injunction until vacated or modified; and a defendant is bound to obey it at his peril. He can not set up his opinion as to its meaning as against the court’s opinion. If he is in doubt as to what he may do without violating the restraining order, he should ask for a modification or a construction of its terms. 10 Enc. PI. & Pr. 1108 j 16 Am. & Eng. Enc. L. 436. The order in the present case was not in general terms, but defendants were restrained from doing a specific thing — from erecting a dam in the river — that is clearly the meaning of the order; the obstruction complained of was the dam, and that is what the court restrained the defendants from erecting. The defendants assumed the responsibility of construing the order, and construed it to mean that they could continue the construction of the dam until it should reach such a height that further construction would obstruct the flow of the water. They were not- restrained, however, from obstructing the flow of the water, but from erecting the dam. One is erecting a dam when he is constructing it, whether he is constructing that portion of it which is below the bed of the stream or that portion which is above such 'bed. When he is engaged in placing logs, rock, and other material in an excavation below the bed of a river, for the purpose of forming the foundation for a dam across such river, he is erecting the dam. It is too well settled to need citation of authority that the decision of a judge on the question of contempt will not be disturbed by the Supreme Court, except in a case where such discretion has been grossly abused. In the present case there was no abuse of discretion.

3. The court, over the objection of the defendants, allowed the petitioner to put m evidence a certified copy of a mortgage from the North Georgia Electric Company to the Knickerbocker Trust Company, dated November 1, 1904, recorded in the clerk’s office of Hall superior court, reciting that it was to secure bonds fox the erection of the dam in question, and creating a lien on the “Wilson Shoals water power” and other property. The objections urged were, that the evidence was immaterial and secondary. The objection of irrelevancjq at-least, was well taken; but we are unable to understand how the defendants were hurt by the admission of this evidence. As we have seen, there was ample evidence, about the admissibility of which there was no question, to warrant the judgment of the court. See Shirley v. Hicks, 105 Ga. 504(3).

4. The judge exceeded his authority in imposing a fine of $250 each on two of the defendants. The constitution declares that, “The power of the courts to punish for contempts shall be limited by legislative acts.” Civil Code, § 5717. The legislature has enacted that “The superior courts have authority . . to punish contempt by fines not exceeding two hundred dollars, and by imprisonment not exceeding twentj'" days.” Civil Code, §4320(5). In Cobb v. Black, 34 Ga. 162, it was held that a similar section of the Code of 1863 — §242(5) —was “applicable only to the punishment for contempt by acts done.” In the case now under review, the contempt for which the fines were imposed had been committed by doing an net or acts which the judge decided to be in violation of his restraining order, and therefore came directly within the scope- of the legislatiye provision limiting the power of the superior courts in imposing fines for contempt. The judge treated the violation of the restraining order as a single act of contempt.

5. The judge, however, did not exceed his power in awarding the costs of the contempt proceedings against the defendants. The costs were no part of the fines. Eapalje, in his work on Contempts, §132, states the rule to be, that, “Where the proceeding arises out of the disobedience of an order or decree in a civil suit, and is prosecuted between the parties to such suit, costs are génerally .awarded to the prevailing party, the same as in other civil proceedings.”

We affirm the judgment of the trial judge, with direction that lie order the sum of fifty dollars to be written off the fine of A. J. Warner and a like sum to be written off the fine of W. A. Carlisle, and that the costs of bringing the case to this court be taxed against the defendant in error.

Judgment affirmed, with direction.

All the Justices concur, except Candler, J., not presiding.