Melton v. Commonwealth

Opinion op the Court by

Judge Carroll

Reversing.

On May 26, 1914, the following information was filed in the Jefferson Circuit Court by the Hon. "William H. Field, one of the judges of that court:

“Commonwealth of Kentucky, Plaintiff v. Arthur C. Popham, William H. Roose, Dr. Frank Melton, Defendants. Information. The Commonwealth of Kentucky, upon information based upon the statements of Clyde C. Collins, this day filed charges: That Arthur C. Popham and William H. Roose each is and each was at the times mentioned herein an attorney at law practicing at the bar of the Jefferson Circuit Court, being members of the firm of Popham, Trusty & Roose; that Dr. Frank Melton is a practicing physician of the City of Louisville; that on October 9, 1913, one Clyde C. Collins was driving a wagon of the American Ice & Cold Storage Co. which came into collision with an automobile of Grainger & Co. near the intersection of Eighth and Walnut Streets, and went into the drug-store at that comer for the purpose of telephoning; that while there, defendants, Popham, Roose and Melton arrived, coming without call or solicitation by said Collins; that said Collins was not injured, and so stated; that the defendants and each of them endeavored to persuade said Collins that he was injured; that defendants, Popham and Roose, told said Collins, in substanee, that he could get ‘a bunch of money’ out of it; that defendants and each of them insisted upon said Collins submitting to examination, and that he was examined by defendant, Dr. Melton; that said Melton die-covered a small bandage worn by Collins as a result of a slight accident sustained the day previous; that, in spite of Collins’ explanation, said Melton re-bandaged him, saying, in substance, that ‘they don’t know about that’; that subsequently Ur. Melton again bandaged Collins ; that suit was subsequently filed by Popham, Trusty & Roose, in behalf of Collins, against Grainger & Co. The statement, under oath, of said Collins, is made a part hereof — Wm. H. Field, Judge.”

Accompanying this information was the verified statement of Collins in the form of a deposition in which he was asked and answered many questions, the substance and effect of his evidence being as stated in the information; and it was on the faith of this statement that Judge Field filed the information, upon which a rule issued from the circuit court against Popham, Roose and Melton. The rule against Melton cited him “to show cause, if any he has or can, why he shall not be proceeded against for contempt of Court, as particularly set forth in information this day filed.”

In answer to this rule Melton appeared in court and filed a response in which, after averring that the charge made against him by Collins in his evidence supporting the information, and the charge contained in the information, was each false, he proceeded to say that on the occasion mentioned in the information and while he was engaged in a professional way in the vicinity of Eighth and Walnut Streets, “he stopped at, the drug-store at the corner of Eighth and Walnut Streets for the purpose of telephoning to his office; that while there he observed that there had been a collision or accident of some kind; and that when he entered the drug-store he observed two men, unknown to him, sitting in chairs and claiming to have been injured in the collision; that the clerk of the drug-store was at the time at the telephone, and turned to this respondent and said that the said two men had been hurt, and that he had been trying to call a doctor, that he had called up two doctors and had been unable to reach either of them, and asked this respondent to aid the two men.”

“Respondent says he did examine the said two men, who claimed that they were injured, and especially the said Clyde Collins; that said Collins at that time had no bandages or plaster on his back as is claimed in said statement, but did complain of pains in his back, and that in order to relieve the same this respondent, with the assistance of the said clerk, and no one else, did first wash with alcohol the places claimed to be causing the pain, and then put over that place an adhesive plaster in order to limit the motions and use of the muscles in the neighborhood of the place where the said 'Collins claimed the pain came from.”

He further said “that he is in no way, shape or form connected with the firm of Popham, Trusty & Roose, or any member of said firm; that he has not in this or any other transaction in any way employed said firm, or done anything to suggest or encourage their employment; that neither of them was present in the drug-store on the 9th day of October, 1913, when this respondent entered said drug-store for the sole purpose of using the telephone; that respondent did not have any knowledge or information whatever as to how said attorneys were called to the said drug-store or as to their business there; that all of the statements made in said affidavit and statement of Clyde Collins filed herein, connecting said firm of attorneys with respondent or that said attorneys directed respondent what to do, are absolutely false; that respondent received no instructions from said attorneys or either one of them; nor was he in any way guided or controlled in his treatment of Collins by directions from or the interests of said attorneys in the case.” He also said “that if the said Collins was not hurt, that he misstated the facts to respondent, and represented to respondent that he was suffering from pains in his back as above set out.”

It further appears from the record that Melton did not see or prescribe for Collins in a professional way, or give him any advice, or make to him any suggestions about his injury, after the suit was brought. That the acts committed by Melton, and on which the contempt charge was based, occurred before the suit was instituted, but were done in contemplation of the suit and for the purpose of sustaining it. That six days after the incident at Eighth and Walnut, a suit was brought in the Jefferson Circuit Court by Popham, Trusty & Roose, attorneys for Collins against Grainger & Co., to recover damages for the alleged injury. That this suit was assigned for trial in the division of the Jefferson Circuit Court presided over by Judge Field, but before coming to trial, was dismissed by Collins, and soon thereafter this rule was issued. That the attorneys, Popham and Roose, were disbarred. That Judge Field impaneled a jury to try Melton, and the jury, after hearing the evidence and receiving the instructions, found him guilty and fixed his punishment at $500.

On this appeal by Melton, although several grounds are assigned why the judgment should be reversed, the principal one is that the prosecution and conviction of Melton on the information filed by Judge Field, and the ■rule issued thereon, was void, because Judge Field had no authority or jurisdiction to issue the rule or hear and determine the issues arising thereon.

This ground of reversal involves an inquiry into the power and jurisdiction of Judge Field to proceed against Melton for contempt on the state of facts shown in the information and supporting evidence, and if Judge Field was without jurisdiction to issue the rule and hear and determine tbe matter, the judgment of conviction was unauthorized and void.

The Jefferson Circuit Court is composed of seven branches or divisions presided over by seven judges, six of them having civil jurisdiction and one criminal jurisdiction. But these seven divisions constitute only one court; namely, the Jefferson Circuit Court, and these seven judges merely preside over divisions of that court. A contempt against the authority of any of these judges or courts would be a contempt against the authority of the Jefferson Circuit Court, and any of the judges or any of the courts would have jurisdiction to proceed against any person guilty of a contempt against the authority of any of the judges or any of the courts composing the Jefferson Circuit Court, although the contempt might not have been committed against the authority of the particular judge or particular court in which the proceeding for contempt was instituted and heard. It is, therefore, not material whether the particular offense here in question was committed by Melton against the authority of Judge Field or the division of the court presided over by Judge Field, because if it was a contempt against the authority of any of the other judges or any of the other courts, Judge Field would have jurisdiction to hear and determine the contempt proceeding.-

• So that the question for decision is, was the conduct of Melton such a contempt of the Jefferson Circuit Court as that he might be proceeded against by rule as for contempt, or was he guilty of an offense for which he could only be proceeded against and punished by the ordinary •processes of the criminal law in the form of a warrant such as may be issued under the authority of the criminal code or by indictment of the Grand Jury?

We assume and will hereafter show that Melton’s conduct amounted to an offense that may be described as the common law misdemeanor of obstructing justice, for which he could be proceeded against and punished in the manner provided by law for the punishment of persons guilty of a common law misdemeanor, there being no statute in this State describing or defining this particular offense. But it does not follow from this that he could be proceeded against and punished as for contempt of court, as was done in the case we have.

Contempt of court is a very ancient offense, and, as we understand it, from the beginning has been confined to acts or conduct amounting to disrespect of, or indignity to, the judge, or court or interference with, or disobedience of the processes, orders or judgments of a court, or some obstruction of the due and proper administration of justice in a pending cause, or some misconduct of an officer of the court. It is generally divided into two classes known as direct and constructive, and Melton, if guilty at all, was guilty of constructive contempt.

In Blackstone’s Commentaries, Book Four, page 283, this great law writer, in discussing particular offenses, speaks of contempt as follows: “To this head, of summary proceedings, may also, be properly referred the method, immemorially used by the superior courts of justice, of punishing contempts by attachment, and the subsequent proceedings thereon.

“The contempts, that are thus punished, are either direct, which openly insult or resist the powers of the courts, or the persons of the judges who preside there; or else are consequential, which (without such gross indolence or direct opposition) plainly tend to create an universal disregard of their authority.- The principal instances, of either sort, that have been usually punishable by attachment, are chiefly of the following kinds: * * * (2) Those committed by sheriffs, bailiffs, goalers, and other officers of the court by abusing the process of the law, or deceiving' the parties, by any acts of oppression, extortion, collusive behavior, or culpable neglect of duty; (3) those committed by attorneys and solicitors, who are also officers of the respective courts; by gross instances of fraud and corruption, injustice to their clients, or other dishonest practice. For the malpractice of the officers reflects some dishonor on their employers; and, if frequent or unpunished, creates among the people a disgust against the courts themselves; (4) those committed by jurymen, in collateral matters relating to the discharge of their office; such as making default, when summoned; refusing to be sworn, or to give any verdict; eating or drinking without the leave of the court, and especially at the cost of either party; and other misbehavior or irregularities of a similar kind; but not in mere exercise of their judicial capacities, as by giving a false or erroneous verdict; (5) those committed by witnesses; by making default when summoned, refusing to be sworn or examined, or prevaricating in their evidence when sworn; (6) those committed by parties to any suit, or proceeding before the court, as by disobedience to any rule or order, made in the progress of a cause; by nonpayment of costs awarded by the court upon a motion. # # #

“Some of these contempts may arise in the face of the court; as by rude and contumelious behavior; by obstinacy, perverseness, or prevarication; by breach of the peace, or any wilful disturbance whatever; others in the absence of the court, as by disobeying or treating with disrespect the king’s writ, or the rules or process of the court; by perverting such writ or process to the purposes of private malice, extortion, or injustice; by speaking or writing contemptuously of the court or judges, acting in their judicial capacity; by printing false accounts (or even true ones without proper permission) of causes then depending in judgment; and by anything, in short, that demonstrates a gross want of that regard and respect, which when once courts of justice are deprived of, their authority (so necessary for the good order of the kingdom) is entirely lost among the people.

“The process of attachment, for these and the like contempts, must necessarily be as ancient as the laws themselves. For laws without a competent authority to secure their administration from disobedience and contempt, would be vain and nugatory. A power therefor© in the supreme courts of justice to suppress such con: tempts, by an immediate attachment of the offender, re-suits from the first principles of judicial establishments, and must be an inseparable attendant upon every superior tribunal.”

In Bouvier’s Law Dictionary contempt is defined as “a wilful disregard or disobedience of a public authority.”

In Bishop’s Criminal Law, Yol. 2, Section 243. under the title of “Contempt of Court and the Like,” it is said: “It is not possible for any judicial tribunal to fulfil its functions without the power to preserve order, and to enforce its mandates and decrees. And the common and apparently the only practical method of doing these things is by the process of contempt. Therefore the power to proceed thus is incident to every such tribunal, derived from its very constitution, without any express statutory aid. The doctrine is generally asserted in these broad terms, and is believed to be sound; the narrower doctrine, about which there is no dispute, is that this power is inherent in all courts of record.”

And in Section 251 it is further said: “"We shall look at the act constituting judicial contempt as committed, First, In the presence of the court: Secondly, In its absence by persons attached to it as officers; Thirdly, In its absence by persons attached to it as parties or as having had process served upon them; Fourthly, In its absence by other persons; Fifthly, In these several ways as against justices of the peace.”

In Sections 257-262 the author describes the con-tempts that may be committed against the court in its absence by other persons, as abusing judge- out of court, enticing away witnesses, improper conduct toward a juror, publications about causes pending, and disobedience to subpoenas.

In Ex Parte Robinson, 19 Wallace 505, 22 L. Ed., 205, the court said: “The power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders and writs of the courts, and, consequently, to the due administration of justice. ’ ’

As further illustrating that it has been deemed proper and wise in this country to confine what are called contempts of court within limits affecting judges or courts, or proceedings in, or processes of a court, or affecting officers of the court, it may be said that it appears in this opinion that Congress has limited summary punishment for contempt to eases: “1. Where there has been misbehavior of a person in the presence of the courts, or so near thereto as to obstruct the administration of justice; 2. Where there has been misbehavior of any officer of the courts in his official transactions; and, 3. Where there has been disobedience or resistance by any officer, party, juror, witness or other person, to any lawful writ, process, order, rule, decree or command of the courts.”

In Yates v. Lansing, 9 Johnson, 395 (N. Y.), 6 Am. Dec., 290, the court said: “The right of punishing for contempts by summary convictions, is inherent in all courts of justice and legislative assemblies; and is essential for their protection and existence. It is a branch of the common law, adopted and sanctioned by our State Constitution. The discretion involved in this power is in a great measure arbitrary and undefinable; and yet the experience of ages has demonstrated that it is perfectly compatible with civil liberty, and auxiliary to the purest ends of justice. The known existence of such a power prevents, in a thousand instances, the necessity of exerting it; and its obvious liability to abuse, is, perhaps, a strong reason why it is so seldom abused. This power extends not only to acts which directly and openly insult, or resist the powers of the court, or the persons of the judges, but to consequential, indirect and contractive contempts, which obstruct the process, degrade the authority, or contaminate the purity of the court.”

In Rapalje on Contempts, Section 21, it is said: “Criminal contempts are all those acts in disrespect of the court or its process, or which obstruct the administration of justice, or tend to bring the court into disrepute * * * such as acts of misconduct by attorneys or other officers, disobedience of subpoenas or other process, disturbance or insolent behavior in the presence or immediate vicinity of the court, and the like.”

In In Re Fellerman, 149 Fed., 244, the court said: ni Contempt of court involves two ideas — disregard of the power of the court and disregard of its authority. Disregard of power, in that lawful orders have not been obeyed; and disregard of authority, in that its jurisdiction to declare the law and ascertain and adjudicate the rights of the parties is hindered, prevented, or set at naught. Such conduct is an offense against the court as an organ of public justice, and may be rightfully punished on summary conviction, whether the act complained of be punishable as a crime on indictment or not. The offense may be double; so is the remedy and! the punishment.”

In Johnson v. Commonwealth, 1 Bibb, 598, this court said: “It seems to be an established principle of law that one court cannot punish for a contempt committed against another court. Intimately related to this, is another sentiment, that one court cannot judge of a contempt committed against another. In fine, it seems necessary to the very existence of a court in the healthy exercise of its powers, that it should have exclusive jurisdiction to judge of contempts to its authority.”

In Welch v. Barber, 52 Conn., 147, 52 A. R., 567, it was held to be contempt for a defendant in a civil action to procure a postponement of a trial upon the false representation that he was ill and unable to attend court.

In Smith v. Brown, 3 Tex., 360, 49 A. D., 748, parties and their attorneys who brought a fictitious suit were held to be guilty of contempt of court.

In Fisher v. McDaniel, 9 Wyo., 457, 87 A. S. R., 971, an attempt to bribe a witness in a pending case was held to be contempt.

To attempt to obtain information from a juror is a contempt: State v. Doty, 3 Vroon, 403 (N. J.) 90 A. D., 671. And so is an attempt to bribe a juror: Little v. State, 90 Ind., 338, 46 A. R., 224.

In Goodhart v. State, 84 Conn., 60, 23 A. & E. Anno. Cases, 1297, it was held that any act committed in the course of a judicial proceeding, with the intent to deceive the court, and which is calculated to impede or obstruct the court in its administration of justice is a contempt.

Many other cases might be referred to, but these are sufficient for the purpose of illustrating the principle expressed in the unbroken current of authority that contempt proceedings are confined to acts or conduct of attorneys, or officers of the court, or acts or conduct affecting the administration of justice in pending cases, or to some interference with the processes of the court, or obstruction of its orders or judgments, or to some indignity to, or disrespect of a judge or court. And a very diligent investigation has failed to discover any authority extending beyond these limits the power of a court to punish criminal contempt by summary proceedings.

In this State we have no statute describing with particularity what constitutes contempt of court, although in Sections 1291-1302, of the Kentucky Statutes, the subject of contempt is treated of. It appears, however, that in all the cases that have been written by this court on the subject, the contempt consisted of some indignity committed against the judge or the court, or interference with its proceedings or processes, or grew out of the misconduct of some officer of the court: Philips & Walker v. Harrison, 3 J. J. Mar., 122; Arnold v. Commonwealth, 80 Ky., 300; In re Woolley, 11 Bush, 95; French v. Commonwealth, 30 Ky. L. R., 98; Gordon v. Commonwealth, 141 Ky., 461; Richardson v. Commonwealth, 141 Ky., 497. In some of these cases the proceedings were summary and the penalty inflicted by the judge; in others a jury was impaneled to assess the punishment.

We, therefore, think that Melton could not be proceeded against or punished in the manner appearing in this record. He was not an officer of the Jefferson Circuit Court. He did not commit any offense in the presence of the court, or interfere with the execution of any process, order or judgment issued by the court, or obstruct in any manner the administration of justice in a case pending in the court.

We are not disposed to concede that a judge of any court has authority to proceed in this summary way to punish persons not court officers who have not committed any offense against the judge or his court, and who have not interfered with or obstructed in any manner the processes or orders or judgments of his court, or the administration of justice there.

In all the history of the law there has been a special practice and procedure for the prosecution and punishment of persons guilty of criminal offenses, and this practice and procedure, with one exception, has always been applicable to crimes great and small. No matter who the offender or what the offense, he must be prosecuted and punished according to and under the rules and forms by and through which the criminal law is administered in all eases and in all courts.

The only exception to this is found in the prosecution and punishment of persons guilty of the misdemeanor known as criminal contempt. And this exception has been made so that a court of justice might, in a summary and expeditious way, punish those who offended against its authority. The exception was not made because criminal contempt was not an offense that might be punished under the practice and procedure applicable to criminal cases, for perhaps without exception all cases of criminal contempt may be so prosecuted and punished — but in order that a court might at all times have the inherent power to preserve its dignity and vindicate its authority without the delay necessarily incident to the prosecution of offenders generally.

But this method should, as we think, he limited to the class of offenses to which it has always been confined. There appears to us no good reason why it should be extended to cases not within the fair scope or purpose of the exception. There are many common law offenses that fall within the definition of obstructions of justice or offenses against government, and these offenses should be prosecuted and punished according to the course of the common law when they do not involve a contempt of court as we have defined it. Nor do we think it consistent with a wise public policy, or in harmony with the spirit of the law as administered in this State and country, to invest judges with the power to summarily' proceed, as by rule, against persons guilty of criminal offenses but who do not offend against the dignity or processes of the court, or with the conduct of pending cases, and who are not its officers. There seems to us no sound reason for making such a departure as this from the settled course of the law in criminal cases, and especially is this so when the procedure of the criminal law, as we will presently point out, furnishes adequate means by which offenders such as Melton was may be punished.

In thus speaking, we do not under value the importance of protecting courts or of keeping pure the administration of the law; nor do we think what we have said limits in any manner the power courts have always possessed to punish as for contempt persons who were guilty of contempt as it has been always defined. When a court has full power and authority to protect it's dignity, enforce its processes, discipline its officers and punish those who would impede or bring into disrepute the administration of justice in a pending case, it has all the authority that is needed to be exercised through contempt proceedings, and other offenses should be left to be disposed of in the ordinary way.

■If there had been a suit pending in the Jefferson Circuit Court and Melton had attempted to manufacture evidence in this suit, or had endeavored to persuade a. witness to give false evidence or conceal the truth, or had in any manner or form interfered with the due' administration of justice in the court in which the case' was pending, we would have no doubt of the right off the court in which the case was pending to proceed1, against him in the summary manner adopted by Judge Field in this case. Or if Melton had been an attorney or officer of the Jefferson Circuit Court, we would say that the court might proceed against him in the manner pursued in this case, as we think that an attorney or any officer of the court, who is guilty of conduct calculated to embarrass the court in the performance of its duties, or who attempts, by improper methods, to secure or suppress evidence, or obtain favors by deceitful means, would be guilty of an offense punishable by a contempt proceeding, although this conduct or these acts were not committed in a pending case. A higher standard of duty is exacted of court officers than is demanded of others, and they might be guilty of contempt of court by committing acts that would not amount to contempt if committed by other persons. Attorneys at law and court officers, being a part of the court and charged in an especial degree with the duty of aiding the court in the correct administration of the law, it is just that the court should have much larger authority over them than it has over other persons.

Returning now to Melton, we think that although not guilty of a contempt of court, he yet committed a public offense; to-wit, the common law misdemeanor of obstructing justice, for which he might be proceeded against and punished in the manner provided for the punishment of persons guilty of common law misdemeanors. It is true that when he approached Collins and prevailed on him to subject himself to the treatment prescribed, Collins had no case pending in court, but, according to Collins’ version of the affair, the purpose of Melton was to fraudulently make up a state of facts that would enable Collins to maintain a suit to recover damages for an injury that he had not sustained. And while it is true that Collins afterwards brought a suit to recover damages, yet we do not consider this circumstance of controlling importance. The offense of Melton was complete when he attempted by the methods described to induce Collins to bring a suit. His purpose was to prostitute the administration of the law and make the courts an instrument of fraud and wrong-doing. He was aiding and assisting in the institution of a suit that he knew was fraudulent and entirely unjustified by the facts, for the purpose of extorting, with the aid of and1 through the instrumentality of the courts, money from an innocent party.

Courts are established for the purpose of administering justice, hut the object of Melton was to pervert this purpose by having them administer injustice and be the agency through which a fraud and a wrong might be perpetrated. Bishop in his Criminal Law, Vol. ly Sec. 468, describes acts like this as an obstruction of justice, which is a common law offense, punishable by fine and imprisonment or both.

In Russell on Crimes, Vol. 1, page 182, it is said: “All who endeavor to stifle the truth, and prevent the due execution of justice, are highly punishable; and therefore the dissuading or endeavoring to dissuade a witness from giving evidence against a person indicted is an offense at common law, though the persuasion should not succeed.”

In Commonwealth v. Reynolds, 14 Gray, 87 (Mass.), 72 A. D., 665, the court, in the course of an opinion defining indictable common law offenses having a tendency to obstruct the administration of justice, said: “And the ‘due course of justice’ means not only the due conviction and punishment, or the due acquittal and discharge of an accused party as justice may require, but it also means the due course of proceedings in the administration of justice. By obstructing those proceedings, public justice is obstructed.”

In State v. Keyes, 8 Vt., 57, 30 A. D., 450, the court also said: “And the doing of any act tending to obstruct the due course of public justice, has always been held indictable as a misdemeanor at common law. ’ ’

In Commonwealth v. Berry, 141 Ky., 477, we held that it was an obstruction of justice and an indictable common law misdemeanor to persuade a person to go beyond the jurisdiction of the court so that he might not be summoned as a witness before the Grand Jury, and in the course of that opinion it was said:

“The course of public justice must not be impeded. The gist of the offense is not a contempt of the court, or an abuse of its process, but the obstruction of justice. He who knows that another will be a witness, or has reason to know it, and so knowing, causes the witness to absent himself for the purpose of preventing his testifying, is guilty of obstructing justice, although the witness; may not have been subpoenaed, or his testimony, if" given, would not have been important. The law does; not tolerate that its proceedings shall be stifled, and' the running off of a witness to stifle a prosecution is none the less an offense because it is done before the Grand Jury is impaneled.”

In the French case, supra, French enticed away a witness in attendance upon the court under its subpoena, and this undoubtedly was an interference with the processes of the court and a contempt of court. For this offense he was arraigned under a contempt proceeding and tried before a jury that assessed his punishment at five thousand dollars, and in the opinion affirming the judgment the procedure to be followed in this class of cases was carefully and thoroughly considered.

The Berry case and the French case illustrate the difference' between offenses amounting to what may be called an obstruction of justice, that must be prosecuted by indictment, and those that may be prosecuted under contempt proceedings. Berry, as said by the court, was not guilty of a contempt of court or an abuse of its process, but of obstructing justice not in a pending case or proceeding, and so committed the common law offense for which he was indicted; while French was guilty of obstructing justice in a pending case, and therefore committed a contempt of court, for which he could be and was prosecuted and punished in a contempt proceeding.

There are also aggravated offenses that may be contempts of court, and also indictable crimes, and punishment for contempt would not bar a prosecution ¡by indictment for the larger crime; but it is not necessary to pursue further an inquiry into this class of offenses.

Melton was, under the evidence for the Commonwealth, guilty of the common law offense of obstructing justice, and for this offense he could have been indicted by the Grand Jury of Jefferson County and, upon his trial, if proven guilty, under the rules of law and evidence that obtain in criminal practice, the jury could have assessed his punishment at a fine in any amount or imprisonment for any length of time, or have both so fined and imprisoned him.

Being of the opinion that this course should have been pursued and that Judge Field had no power or jurisdiction to proceed by information and rule, the judgment is reversed, with directions to discharge the rule and set aside the judgment.

The whole court sitting. Chief Justice Hobson and Judge Hannah dissenting.