Opinion
No. 39251.
June 14, 1954.
1. Injunction — evidence — contempt — violation of injunction decree.
Evidence was sufficient to sustain decree adjudging accused in contempt for violation of injunction restraining her from operating or attempting to operate a house of prostitution or assignation upon the premises owned and operated by her.
2. Bill of review — to impeach character of witness — not entertainable.
A bill of review cannot be entertained to impeach the character of witnesses.
3. Bill of review — allowance — Court's discretion.
The allowance of a bill of review is within the sound discretion of the Court, and there was no abuse of the Court's discretion in refusing to entertain the bill of review in this instance.
Headnotes as approved by Hall, J.
APPEAL from the chancery court of Adams County; F.D. HEWITT, Chancellor.
Laub, Adams, Forman Truly, Natchez, for appellant.
I The decree of the Chancellor is manifestly erroneous. Evans v. Evans, 193 Miss. 468, 9 So.2d 641; Fortenberry v. State, 216 Miss. 243, 62 So.2d 325; McLeod v. State, 140 Miss. 897, 105 So. 757; Magee v. State, 99 Miss. 83, 54 So. 802; Walton v. State, 219 Miss. 72, 68 So.2d 87; 17 C.J.S., Contempt, Sec. 84(d).
II. The motion made by defendant at the close of the State's case to discharge the defendant should have been sustained by the Court. Evans v. Evans, supra; Secs. 1060-61, Code 1942; 27 C.J.S., Disorderly Houses, Sec. 4(f); 73 C.J.S., Prostitution, Sec. 1.
III. The Chancellor should have granted appellant leave to file her bill of review for newly discovered evidence. Griffith's Miss. Chancery Practice, Sec. 637.
Joe T. Patterson, Asst. Atty. Gen., Jackson, for appellee.
I. The evidence fully warranted the finding of the Chancellor that the appellant was guilty of violating the terms of the injunction, and the evidence further warranted the Chancellor in imposing the maximum sentence upon the appellant. Dickens v. State, 208 Miss. 69, 43 So.2d 366; Peabody v. State, 72 Miss. 104, 17 So. 213; Secs. 1060-61, Code 1942; 17 Am. Jur., Secs. 6, 16 pp. 108, 117.
II. The granting of leave to file a bill of review for newly discovered evidence is solely in the discretion of the Chancellor, and it cannot be said from this record that the Chancellor abused his discretion.
III. The evidence herein fully warranted the Chancellor in imposing the maximum punishment authorized by Section 1069, Code of 1942, upon this appellant for violating the terms of the injunction.
On November 22, 1952, a temporary injunction was issued restraining appellant from operating or attempting to operate, directly or indirectly, a house of prostitution or assignation upon the premises owned and occupied by her in the City of Natchez. This injunction was made permanent by a decree of February 6, 1953. Thereafter, on August 17, 1953, a petition was filed against her alleging that she had violated the terms of said injunction and seeking a citation for contempt against her. Upon the hearing she was adjudged in contempt for said violation and sentenced to pay a fine of $1,000.00 and to serve six months in the county jail, from which she appeals.
(Hn 1) Appellant contends first that the decree of the chancellor is manifestly erroneous and that her motion to discharge her should have been sustained. It would serve no good purpose to set out the evidence upon which the decree was entered. We have carefully read and considered it and are of the opinion that it sustains the decree, and we cannot say therefrom that the decree was manifestly erroneous nor that her motion for discharge should have been sustained.
(Hn 2) About nine days after rendition of the decree appellant filed a petition for leave to file a bill of review and this was denied, which denial is assigned as error. The proposed bill of review sets forth that one of the witnesses for the State testified falsely as to his ever having been convicted of a criminal offense and further that he testified falsely as to the length of time he had been engaged in his present employment. These matters go only to the credibility of the witness and to the impeachment of his character and not to the real issue before the chancellor which was sustained by the testimony of other witnesses whose credibility is not attacked. In the early case of Foy v. Foy, 25 Miss. 207, 212, this Court held that a bill of review cannot be entertained to impeach the character of witnesses. To the same effect see Griffith's Mississippi Chancery Practice, Section 637, page 699. (Hn 3) Moreover, the allowance of a bill of review is within the sound discretion of the court, Griffith's Mississippi Chancery Practice, Section 640, and we do not think the chancellor abused his discretion in this instance. The decree of the lower court is accordingly affirmed.
Affirmed.
McGehee, C.J., and Lee, Ethridge and Gillespie, JJ., concur.