Hancock v. Kennedy

Jenkins, J.

1. Proceedings for contempt are of two classes, punitive and remedial. A proceeding of the former class is intended to punish the offender for a past act of omission or commission which has disturbed the regular proceedings of the court, interfered with its proper func-' tioning, resisted its authority, or reflected contempt upon it, and the authorized penalty in such a case is that prescribed by section 4849 (5) of the Civil Code of 1910; the latter or remedial proceeding is instituted to preserve and enforce the rights of private parties, and may be resorted to as a means of compelling obedience to such court orders or duties as the offenders may wilfully or fraudulently fail or refuse to perform; and in such cases of continuing contempt it is within the power of competent courts to imprison the refractory party until he shall have obeyed the precept. Cobb v. Black, 34 Ga. 162, 166 (2); Ryan v. Kingsbery, 89 Ga. 228 (4) (15 S. E. 302); Drakeford v. Adams, 98 Ga. 722, 724 (25 S. E. 833); Tindall v. Nisbet, 113 Ga. 1114 (4, b), 1115 (39 S. E 450, 55 L. R. A. 225).

2. Under both the pleadings and the evidence in this case, the proceeding was punitive in its nature, and sought to charge the respondent clerk with past and completed acts of omission and commission in the performance of his official duties; the pleadings negative any charge, and the proof any act, of a continuing breach of official duty, such as it lay within the power of respondent to rectify. The judgment as entered by the court was therefore illegal.

Judgment ■reversed.

Wade, O. J., and Luke, J., concur.