That under the circumstances identity of offense is lacking and punishment of a court's order is not punishment for a criminal offense. Since the prior order finding defendant in contempt resulted from the violation of an order made for the benefit of a party to an action and was instituted in the manner outlined in Gorham vs. New Haven, 82 Conn. 153, rather than in that involved in Huntington vs. McMahon, 48 Conn. 174, and as pointed out in Welch vs. Barber, 52 Conn. 147, it must be viewed as civil in character and as such is not cognizable as a violation of the United States Constitution. MEMORANDUM FILED APRIL 19, 1937.
fendants to answer the subpoenas was not a violation of an order of court, for the subpoenas here did not issue from the court, but from a Commissioner of the Superior Court; therefore, they are not guilty of contempt of court. If a subpoena is issued by the court, it is the writ of the court and, hence the order of the court. If a subpoena is issued by the court, it is the writ of the court, and all the character and quality of mesne process which Commissioners of the Superior Court are empowered to sign) it still appears that it was the exercise of a ministerial function, only, in contradistinction to a judicial act. Upon the defendants' failure to appear, the plaintiff might have invoked the provisions of Sec. 5580, Gen. Statutes, Rev. 1930, for if the defendants were without valid excuse for their conduct, would have resulted in their being fined and commanded to obey the subpoena and to testify. The instant motion is insufficient since it fails to follow the procedure outlined in Gorham vs. New Haven, 82 Conn. 153, 156, whereby the defendants are given notice and an opportunity to be heard. A Court of Equity has no inherent power to strike a defendant's pleadings from the file and default him insofar as these describe a defense to the merits of an action.
See Decker Coal Co., 774 P.2d 1274. There is relevance to the conceptional concept addressed by this court in Tucker, 35 Wyo. at 441, 251 P. 460 (quoting Gorham v. City of New Haven, 82 Conn. 153, 72 A. 1012 (1909)): "A motion for an attachment for contempt, when there is a disobedience of an injunctional order, is not disconnected from the decree which it seeks to enforce.
Further, at common law a charge of indirect contempt of court, in the absence of an admission of contempt, had to be proved by sufficient competent evidence, including testimony under oath. See Savin, Petitioner, 131 U.S. 267, 277, 9 S.Ct. 699, 33 L.Ed. 150 (1889); Potter v. Board of Selectmen, 174 Conn. 195, 197, 384 A.2d 369 (1978); Masti-Kure Products Co. v. Appel, 161 Conn. 108, 114, 285 A.2d 346 (1971); Gorham v. New Haven, 82 Conn. 153, 155-56, 72 A. 1012 (1909); Church v. Pearne, 75 Conn. 350, 355, 53 A. 955 (1903); Baldwin v. Miles, 58 Conn. 496, 498, 20 A. 618 (1890); Welch v. Barber, 52 Conn. 147, 156-58 (1884); Huntington v. McMahon, 48 Conn. 174, 196 (1880). Therefore, if the conduct alleged to be contemptuous occurred outside of the court's presence, as it did in this case, the court can only act upon evidence properly taken that proves the act of contempt. 17 C.J.S., Contempt 84(4) and cases cited therein; 17 Am.Jur. 2d, supra, 83, 88, 95 through 99; Dobbs, supra, 2.9.
Wheeler v. Bedford, 54 Conn. 244, 249, 7 A. 22; Brainard v. West Hartford, 140 Conn. 631, 635, 103 A.2d 135. If the plaintiffs have an adequate remedy at law then they are not entitled to the injunction. Mitchell v. Southern New England Telephone Co., 90 Conn. 179, 183, 96 A. 966; Gorham v. New Haven, 82 Conn. 153, 156, 72 A. 1012; 6 Nichols, Eminent Domain (3d Ed.) 28.22, p. 622. The plaintiffs alleged in their complaint that the authority was authorized to acquire by condemnation, subject to the provisions of 48-6 of the General Statutes, real property necessary for or incidental to the construction, maintenance or operation of parking facilities.
Violation of an injunction issued in protection of a private right is, in this state, usually punished by citing the guilty person into court and imposing a penalty based upon compensatory damages. Rogers Mfg. Co. v. Rogers, 38 Conn. 121, 123; Smith v. Jewell, 71 Conn. 473, 477, 42 A. 657; Gorham v. New Haven, 79 Conn. 670, 674, 66 A. 505; Gorham v. New Haven, 82 Conn. 153, 156, 72 A. 1012; Lawton v. Herrick, 83 Conn. 417, 425, 76 A. 986. If this were the only means of enforcement and the exercise of the power depended upon bringing the violator before our courts, it would be true that they would not, except perhaps in most unusual cases, grant an injunction against a nonresident. There is, however, another means of punishing a violator and that is to deny him any aid from courts of the state where the injunction is granted in the assertion of rights growing out of the transaction in question until he has purged himself of the contempt.
Inasmuch as the city, by its charter, had jurisdiction to make the assessment, it is valid and binding upon the plaintiff unless appealed from, and cannot be collaterally attacked, after the improvement has been completed, by an injunction, except for some jurisdictional defect. Keifer v. Bridgeport, 68 Conn. 401, 411, 36 A. 801; Gorham v. New Haven, 82 Conn. 153, 156, 72 A. 1012; Thomson v. New Haven, 100 Conn. 604, 607, 124 A. 247 At the trial, plaintiff called a real-estate expert for the purpose of proving that its land was not benefited by the improvement, and, on that account, the bureau of compensation and board of aldermen were without power to make the assessment, and asked the witness whether or not the plaintiff's property, in his judgment as an expert, was benefited by the proposed improvement.
In Heather v. Palmyra, supra, it was held that a party to a civil suit is not entitled to a change of venue in an ancillary proceeding connected with the main case, such as a proceeding for the enforcement of a judgment therein. In the case of Gorham v. New Haven, 82 Conn. 152, 72 A. 1012, it was held that: "A motion for an attachment for contempt, when there is a disobedience of an injunctional order, is not disconnected from the decree which it seeks to enforce.
The prayer that the proceeds of sale be divided upon the named parties as may show themselves entitled subjects it to demurrer. 21 C. J. 679; Kuchenbeiser v. Berkert, 41 Ill. 172; Tantum v. Campbell, 83 N.J. Eq. 361, 91 A. 120; Gorham v. New Haven, 82 Conn. 153, 72 A. 1012; White v. Scofield, 84 Ga. 56, 10 S.E. 591; Van Epps v. Redfield, 68 Conn. 39, 35 A. 809, 34 L.R.A. 361; Turner v. Turner, 193 Ala. 424, 69 So. 503; Simmons v. Williams, 27 Ala. 507. K. V. Fite, of Hamilton, for appellee.
The adjudication upon the issue of the trespasses involves the issues of title and possession. When the trespasses complained of work irreparable injury injunction may lie; Lawton v. Herrick, 83 Conn. 417, 425, 76 A. 986; Gorham v. New Haven, 82 Conn. 153, 156, 157, 72 A. 1012; and will lie provided the complainant's title is not in doubt or conflict and he has the actual possession. Under the modern doctrine of equitable interference to restrain continuing trespasses, equity will act only in a case where the complainant's title is either admitted or not denied, or is established at law, or has been long enjoyed and where the complainant is in actual possession, or perhaps in cases where irreparable injury will be likely to result from non-interference, which is not this case.