Opinion
Application to be discharged from custody on habeas corpus.
COUNSEL:
McFarland and Hopkins & Southit, for Petitioner.
J. H. Budd, Contra.
OPINION By the Court.
A judgment was rendered against the petitioner in a civil action, in a Justice's Court, for $ 25 45, on which an execution issued and remained unsatisfied. It appears from the commitment returned by the Sheriff, as his authority for holding the prisoner, that " after due proceedings, had subsequently and under said execution, the petitioner appeared in Court, and, on an examination concerning his property, testified that he had on his person, and under his control, a silver watch, a gold ring, fifty cents in money, and at his home another silver watch," all of which was his property. Thereupon the Court made and entered an order (of which the petitioner was informed) that he deliver the property to one Longmair, an officer of the Court, to be applied towards the satisfaction of the execution; that the petitioner, on being informed of the order, peremptorily refused to obey it, whereupon the Court adjudged him to be guilty of contempt, and of disobeying its lawful order, and adjudged that he be imprisoned until he comply with and obey the order. The commitment directs the Sheriff to receive and detain the petitioner " until he is lawfully discharged."
It is insisted that under Section 909, of the Code of Civil Procedure, the jurisdiction of a Justice to punish for a contempt is limited to a fine not exceeding $ 100, and imprisonment for one day. Hence it is claimed that the Justice, in this case, exceeded his jurisdiction, and that the commitment is void. But Section 905 of the same code provides that sections from 714 to 721, both inclusive, shall be applicable to Justices' Courts. These sections relate to " proceedings supplementary to the execution," and define the steps which are to be pursued in order to compel the judgment debtor to disclose his property, and to secure its application toward the payment of the execution. Section 719 provides that the Judge or referee may order the property, when disclosed, to be applied toward the satisfaction of the judgment. Sections 1,209 to 1,229 relate to contempts; and the first of these sections commences with these words: " The following acts or omissions, in respect to a Court of Justice, or proceedings therein, are contempts of the authority of the Court." It then proceeds to define what acts shall constitute a contempt; and, amongst others, enumerates the " disobedience of any lawful judgment, order, or process of the Court." Section 1,219 provides that " when the contempt consists in the omission to perform an act which is yet in the power of the person to perform, he may be imprisoned until he have performed it, and in that case the act must be specified in the warrant of commitment." If this section applies to Justices' Courts, the Justice in this case had authority to commit the defendant until he obeyed the order; and on this point we entertain no doubt. Section 925 of the same code provides that only those provisions of the code " which are in their nature applicable to the organization, powers, and course of proceedings in Justices' Courts, or which have been made applicable by special provisions in this Title, are applicable to Justices' Courts and the proceedings therein." The necessary inference is, that those provisions of that Code which are in their nature applicable " to the organization, powers, and course of proceedings in Justices' Courts," shall be applicable to them; and we are of opinion that Section 1,219 comes within this category. If it were otherwise, the Justice would be, in great measure, powerless to compel obedience to such an order; and there is nothing in the " organization, powers, and course of proceedings in Justices' Courts" in the least degree incompatible with the exercise of such a power. Section 909 must, therefore, be understood as limiting the power of the Justice to punish for a contempt merely as such; but Section 1,219 was intended to compel obedience to the order, and not merely to punish for the contempt. Although this obedience of the order is classified as a contempt, and may be punished merely as such, nevertheless the sole purpose of Section 1,219 is to compel obedience to the order; and we think it is clear that this section is applicable to Justices' Courts. But if we had any doubt on the point under discussion, it would be removed by reference to the fourth subdivision of Section 128 of the same code, which provides that every Court shall have power to " compel obedience to its judgments, orders, and process, and to the orders of a Judge out of Court in an action or proceeding pending therein."
We deem it unnecessary to notice the other points made by counsel.
Writ dismissed, and the prisoner is remanded to the custody of the sheriff.