Safie Manufacturing Co. v. Arnold

WiNBORNE, J.

It is appropriate to note, in summary, that the contempt proceeding against respondents, appellants in this Court, arises out of a principal action in which Superior Court judges, presiding over Superior Courts of Richmond County, courts of competent jurisdiction, successively issued three injunctive orders for the purpose of protecting persons who desired to work, and who had a right to work, if-they so desired, in plaintiff’s plant. And while the orders are by their terms temporary and effective only until final trial of the cause, they are lawful orders of a court of competent jurisdiction. Any person guilty of willful disobedience of such order may be punished for contempt of court. G. S., 5-1. Nobles v. Roberson, 212 N. C., 334, 193 S. E., 420; Elder v. Barnes, 219 N. C., 411, 14 S. E. (2d), 249.

The power of courts to compel obedience to their orders lawfully issued is essential to their jurisdiction and the maintenance of judicial authority. Cromartie v. Comrs., 85 N. C., 411; Elder v. Barnes, supra.

It is apparent from the record on this appeal that the courts proceeded with patience and moderation, and that the contempt proceeding was resorted to only after moderate means had failed, — in that the lawful' orders of the court were being willfully disobeyed.

On this appeal appellants, as challenge to the judgments holding them in contempt for willful violation of the injunctive orders of the court, present six questions, neither of which is tenable. We treat them here seriatim, as follows:

The first point presented brings into question the denial of respondent’s motion, made on special appearance for the purpose, to dismiss the said petition to adjudge in contempt for that the court has not thereby^ acquired jurisdiction of the persons of the respondents or of the subject matter attempted to be presented thereby in that it is verified upon information and belief. In this connection while “proceedings” as for contempt should always be based upon affidavit, In re Deaton, 105 N. C., 59, 11 S. E., 244, the record in the case in hand discloses that the petition is verified in accordance with the form prescribed by statute, Gr. S., 1-145, for the verification of pleading in a court of record, that is, “that the same is true to the knowledge of the person making it, except as to those matters stated on information and belief, and as to those matters he believes it to be true.” And the facts set forth in the petition, as shown in the record, do not appear to be “matters stated on information and belief,” but are stated to be within the knowledge of the person making it.

Hence we hold that the verification is sufficient to meet the requirement of legal procedure in contempt proceedings. However, if such were not the case, each of the respondents, except Driggers, waived any rights he or she may have had, if any, in this respect, by being sworn, at his or her own request, and making answer in that form to the charge of contempt of court so preferred against him or her. In re Odum, 133 N. C., 250, 45 S. E., 569.

The second question presented by respondents, the appellants, challenges the competency of certain testimony of witnesses, admitted over their objection, during the hearing on notice to respondents to show cause why they should not be adjudged in contempt of court in the respects set out in the petition initiating the contempt proceedings.

In this connection, the record on this appeal shows that during the course of the said hearing before the judge below, on said notice to show cause, respondents, appellants, entered numerous exceptions, thirty-six or more, to the admission of evidence, all of which are'grouped in the assignments of error and debated in their brief filed in this Court. However, the record also shows that there is no exception to any finding of fact made by the court, as set out in the several judgments entered in Superior Court. An exception to each of the judgments so rendered does appear. In the light of this situation of record, the exceptions to the evidence offered are ineffectual. See Smith v. Davis, ante, 172, and cases there cited.

Nevertheless, it is appropriate to say that' on examination the exceptions to the admission of testimony, to which they relate, are found to be without merit. See S. v. Smith, 221 N. C., 400, 20 S. E. (2d), 360, and cases cited. There this Court, speaking to the subject of a conspiracy to accomplish some unlawful purpose, repeated a well settled principle of law, that “the acts and declarations of each conspirator, done or uttered in furtherance of the common illegal design, are admissible in evidence against all. S. v. Ritter, 197 N. C., 113, 147 S. E., 733. ‘Every one who enters into a common purpose or design is equally deemed in law a party to every act which had before been done by the others, and a party to every act which may afterwards be done by any of the others, in furtherance of such common design.’ S. v. Jackson, 82 N. C., 565; S. v. Anderson, 208 N. C., 771, 182 S. E., 643.”

Moreover, the evidence so admitted tends to show, in the main, the state of mind and animus of those in the crowds of which respondents were a part, as bearing upon the question as to whether the acts, with which respondents are charged, were done with knowledge of, and in willful violation of the order of injunction against interference with those who wished to enter the plant of plaintiff for work.

The third and fourth points raised by respondents, appellants, are that the court erred in overruling their separate motions for judgment as of nonsuit. In this connection respondents, appellants, consider the evidence as it relates to each of them as incidents isolated from and disconnected with the matters to which the court orders of injunction pertain, — contending that at most each might be guilty of some criminal offense. The scope of the evidence as shown in the record is not so limited. The facts found by the judge are supported by the evidence as so shown, and are sufficient to constitute contempt of court, and to sustain each of the several judgments against the individual respondents.

The fifth and sixth questions relate to, and challenge the legality of the several judgments rendered against respondents individually and separately upon numerous grounds. We have carefully considered each, and find only these to merit treatment :

It is contended that the orders, upon the contempt proceedings is based, are void and of no effect in that the order of 17 May and' the order of 27 May are amendments to the original order of 2 May, and were entered after an appeal from the order of 2 May had been taken to, and was pending in the Supreme Court. In this connection, there is in this State a statute, Gr. S., 1-294, formerly Code 558, Revisal 602, C. S. 655, which provides that “when an appeal is perfected as provided by this article (civil procedure on appeals) it stays all further proceedings in the court below upon the.judgment appealed from or upon the matters embraced therein; but the court below may proceed upon any other matter included in the action and not affected by the judgment appealed from ...”

In construing this statute, this Court, in the case of Herring v. Pugh, 126 N. C., 852, 36 S. E., 287, a proceeding in contempt, after referring to the general rule that the effect of an appeal from a final judgment is to remove the cause into another jurisdiction, that of the appellate court, had this to say: “But there are powers of the court in which the judgment was originally rendered in the nature of auxiliary agencies, that can be exercised in furtherance of the object of the suit.” And, continuing, the Court said: “And besides Section 558 of the Code is itself in language too plain to admit of doubt that the court in which the judgment was rendered still retains jurisdiction to hear motions and grant orders, except such as concern the subject matter of the suit.” Compare Combes v. Adams, 150 N. C., 64, 63 S. E., 186, where Holce, J., writing for the Court, states the principle conversely: “While the Court has held that an appeal from an interlocutory order leaves the action for all other purposes in the court below, the decision is also to the effect that the disposition of the interlocutory order and all questions incident to and necessarily involved in the ruling thereon are carried by the appeal to the appellate court.”

Moreover, this Court held in the case of Green v. Griffin, 95 N. C., 50, in an opinion by Smith, G. J., that appeals from interlocutory or subsidiary orders, judgments and decrees made in a cause, carry up for review only the ruling of the court upon that specific point, and that the order or judgment appealed from is not vacated. •

In the.light of the statute and of these decisions of this Court in respect thereto, it is noted (1) that in the order of 2 May, 1947, the court expressly reserved the right to limit the number of persons who might act as pickets, if, in its opinion, such action should become appropriate; (2) that in the order of 17 May the court acted in accordance with such reservation, and made the limitations imposed apply alike to original defendants and to persons made additional defendants at that time; (3) that the orders of 17 May and 27 May did not change in substance the injunctive provisions of the order of 2 May, but only enlarged the number of persons to whom those provisions should apply; and (4) that all three orders are interlocutory, pending final hearing. Manifestly,' the action of the court in making these orders is in full accord and in keeping with the provisions of the statute and decisions of this Court.

Furthermore, the appeal taken to the order of 2 May was not perfected, and on motion duly made, in this Court, has since been dismissed.

It is next contended that the court below failed to make sufficient findings of fact against each respondent to support a judgment of contempt. As to this, it is a well settled principle of procedure that in contempt proceedings the facts upon which the contempt is based must be found by the court, especially the facts concerning the purpose and object of the contemnor, and the judgment must be founded on these findings. In re Odum, supra,; In re Hege, 205 N. C., 625, 172 S. E., 345.

Applying this principle to each of 'the judgments involved on this appeal it appears that the findings of fact are sufficient, and the judgment is founded on such findings. It appears in each judgment that the cause was heard upon plaintiff’s petition, and the petition specifies the provisions of the injunctive orders with the violation of which respond-exits are charged. Evidence, as appears of record, was beard and considered. And the court finds as a fact that each respondent has willfully violated the injunctive orders of the court in this cause by assaulting or intimidating, or both, particular person, or persons, under the circum stances and conditions shown by the evidence. And the evidence to support the finding is ample. ,

It is further contended in effect that this contempt proceeding is of criminal nature, and is governed by the rules of procedure and the law applicable to criminal prosecutions, and hence the judgments rendered under the circumstances of this proceeding exceed the jurisdiction of the court. As to this contention, in this State a contempt proceeding is authorized by statute, G. S., 5-1. This Court has described it as sui generis, criminal in its nature, which may be resorted to in civil or criminal actions. In re H.ege, supra. And it is held that persons charged are not entitled to a jury trial in such proceeding. In re Gorham, 129 N. C., 481, 49 S. E., 311.

Finally, careful consideration of all assignments of error, and of the argument advanced by respondents fails to show error in the judgments from which appeals are taken.

Affirmed.