Opinion
No. 30061.
June 13, 1932.
1. APPEAL AND ERROR. After dismissal of bill and dissolution of injunction, defendant could not be held in contempt for violating injunction after filing of supersedeas bond without notice.
Facts disclosed that chancery court dismissed bill and injunction restraining defendant from acting as school superintendent in suit by persons usurping office of school trustees, but allowed appeal with supersedeas provided it should be filed within certain period. Thereafter defendant school superintendent, at request of de jure trustees, resumed his duties as superintendent, and was thereafter served with citation for contempt after supersedeas bond had been filed without notice to him.
2. APPEAL AND ERROR.
To make supersedeas effective, writ must be served on one whose action is sought to be restrained thereby.
APPEAL from Chancery Court of Yazoo County.
Franklin, Easterling Rosenthal, of Jackson, for appellant.
The legal trustees, having requested a dismissal of the case, and the court in compliance with their request having dismissed the case and dissolved the injunction, same constituted a nonsuit and the decree was not appealable.
Ball et al. v. Jones et al., 133 Miss. 500, 102 So. 563; Cohn v. Beal, 61 Miss. 398; Board of Levee Commissioners v. Montgomery et al., 110 So. 847; McHenry et al. v. State of Mississippi, 44 So. 831, 16 L.R.A. (N.S.) 1063; In re Sawyer, 124 U.S. 200; Ex parte Fisk, 113 U.S. 713; Savage v. Sternberg, 19 Wn. 679, 67 A.S.R. 751.
An injunction, void because of want of jurisdiction in the judge to issue it, may be disregarded and the person disregarding it is not guilty of contempt.
6 R.C.L. 505; People v. McWeeney, Ann. Cas. 1916B, 34; Old Dominion Telegraph Company v. Powers, 104 Ala. 220, 1 Am. Eng. Cas. 119.
It is the contention of the appellant here that the mere filing of the bond did not reinstate the injunction, but that it was absolutely necessary that some notice be given to the appellant.
Section 23, Mississippi Annotated Code of 1930; Section 29, Code of 1930; Section 40, Code of 1930; Neel v. Neel, 61 Miss. 630.
The statutory procedure must be strictly followed and appeals are only allowed on the conditions prescribed by law.
Howell v. Miller, 118 So. 178; Wilson v. State of North Carolina, 169 U.S. 486, 42 L.Ed. 865; Miller v. Phipps, 119 So. 171.
Upon the filing of the bond and the perfecting of the appeal, the supersedeas went only to that part of the decree wherein damages were allowed. The decree of the chancellor did not in any way keep the injunction alive and the order of the chancellor allowing the appeal did not keep the injunction alive. In fact, in absolute language the court held that the injunction was dissolved and held for naught. The only provision of the decree in which the said complainants Kirk and Miller are interested, is, as heretofore stated, that part dealing with the damages allowed against them. They can have no interest in the question of control of the school property. This being true, the supersedeas secured by them could not affect the injunction.
2 R.C.L. 52, section 33.
The chancellor may allow the supersedeas and the clerk of the lower court may approve the supersedeas bond, but any application for a discharge or vacation of the supersedeas must be made to the supreme court.
Section 3386, Code 1930; Carr v. Marion Mortgage Co. (Fla.), 126 So. 776; McKinnon-Young Co. v. Stockton, 53 Fla. 734, 44 So. 237; State ex rel. Carroll v. Campbell, 25 Mo. App. 635; Kentucky I. Bridge Co. v. Krieger, 91 Ky. 625, 16 S.W. 824; Howe v. Shearing, 6 Bosw. 686; West Virginia v. The Harper's Ferry Bridge Co., 16 W. Va. 864; Smith v. Government of the Canal Zone, 249 Fed. 273, 161 C.C.A. 281; Daly v. Brock, 63 So. 318, 133 La. 752; McLaughlin v. Janney et al. (Va.), 6 Gratt. 709; Smith v. Caldwell, Sneed (Ky.), 341.
Holmes Potter, of Jackson, for the state.
Certainly, in the light of this record, and in view of the judgment of the court in the quo warranto proceedings which is res adjudicata that Miller and Kirk were de facto officers in possession of the office, it cannot be contended with reason that the complainants in the injunction suit were without power and authority to bring the suit. Certainly, it cannot be contended with reason, either, on the facts of this case, that the injunction should not have been originally issued. It was the view of the chancellor that the suit was properly brought and that the injunction was rightly issued. He dissolved the injunction solely upon the ground that the dissolution followed his dismissal of the suit as a result of the resolution passed by Warrington and Plunkett. It is therefore respectively submitted that the appellant here cannot escape the penalty of his contempt action on the theory that the entire proceedings were void.
If application had been made to the chancellor in open court for an appeal with supersedeas and the supersedeas had been denied, and application had then been made to a judge of the supreme court for a supersedeas, and the same had been granted, there might be some merit in appellant's contention that he was entitled to notice on the granting of the supersedeas. In this case, however, the appeal with supersedeas was applied for at the conclusion of the hearing in open court in the presence of McCandless, and granted by the chancellor in open court and in the presence of McCandless.
32 C.J., p. 487, par. 841; Burr v. Kimbark, 29 Fed. 428.
It is no defense to the person violating the injunction that he acted under advice of counsel; and especially is this so where defendant goes further than he is advised that he can do.
32 C.J., p. 500.
Neither the ignorance of McCandless of the filing of the bond nor the advice of his counsel can furnish any defense to his violation of the injunction. He knew that the appeal with supersedeas had been granted. No law required that notice of the filing of the bond be given him.
The appeal with supersedeas operated to suspend the decree which dissolved the injunction. Therefore, the chancellor, by granting the appeal with supersedeas, elected to retain the preliminary injunction in force, and did so. The power to punish for contempt for a violation of the injunction, therefore, remained with the chancellor.
3 C.J., p. 1271; Section 367 of the Code of 1930.
This appeal is from a decree of contempt and is the third appeal that has reached this court, growing out of the same general controversy wherein an illegal board of school trustees attempted to oust the legal board and to oust appellant who was the legally elected superintendent of the school. The first case is reported under the style State ex rel. Plunkett et al. v. Miller et al., 137 So. 737, and the second was dealt with in an elaborate opinion in Walter Day et al. v. C.H. McCandless, 142 So. 486, delivered on June 6, 1932. Those two opinions will disclose the main facts which have led up to that branch of the controversy which is now before us; but a brief review will here be made.
An illegal board of school trustees attempted to force the legal board out of office, and to force appellant who had been elected superintendent of the school to quit his place, to which place the usurping board elected or pretended to elect another superintendent. The said usurping board, at the beginning of the school session of 1931-32, wrongfully called to its aid the strong arm of the chancery court, and an injunction was secured against appellant, the legal superintendent, and without notice to him until the injunction had been issued and served on him, prohibiting him from entering upon his duties as superintendent, and from the performance of any of said duties, and generally restraining and enjoining him even from going upon the school premises. In other words, and in brief, an illegal board and an illegal injunction took the school away from those lawfully entitled and turned it over to usurpers.
When this court, in the first case, decided that the pretended board which had been operating against appellant was an illegal board, appellant promptly moved to dissolve the injunction which had been procured against him by said illegal board. This motion was presented on January 8, 1932, and by agreement the final hearing thereon was postponed until January 16, 1932. Among other things presented at the hearing to dissolve was a resolution of the legal board requesting that the bill filed by the usurping board be dismissed, and the bill was dismissed, and the injunction was wholly dissolved, because the pretended board which filed the bill and procured the injunction had no authority so to do. This action of the chancery court was affirmed in the second opinion of this court, above referred to.
But the decree of the chancery court dismissing said bill and wholly dissolving the injunction, which decree was dated January 16, 1932, but not filed until January 27, 1932, allowed — and most improvidently so — an appeal with supersedeas, provided the supersedeas bond should be given on or before February 6, 1932. After the dissolution of the injunction, and when it was no longer in force, the legal trustees requested and directed appellant to proceed with his duties as superintendent of said school, and he was thus proceeding on Monday, February 1, 1932, when he was served with a citation for contempt, issued on a petition sworn to and filed by the solicitor for the illegal board of trustees and upon a fiat of the chancellor for said citation, all on the same day, to-wit, February 1, 1932, and made returnable before the chancellor at nine o'clock the next morning, February 2, 1932. It appears, however, that appellant was given until the next day, February 3, 1932, to file his answer, on which day appellant was sentenced to ten days in jail for contempt.
The facts are that the supersedeas bond was filed and approved on Saturday, January 30, 1932, but at what time of that day does not appear. Appellant was given no notice of the filing of said bond and no notice that the supersedeas had been put into effect, and it is admitted in the record that he had no knowledge of it until the citation for a contempt was served on him on Monday the 1st of February, 1932; but it is the contention, which was sustained by the chancellor, that appellant was under duty to watch the docket of the court at the county seat and to keep himself advised of the instant when the supersedeas bond was filed, if and when that event occurred, and that he acted at his peril in not doing so. In other words, as we understand it, the contention is that, although the injunction stood wholly dissolved until the supersedeas bond was filed, and up to that time appellant was in no way bound by the injunction, he was nevertheless bound in ultimate effect by the injunction, unless he either remained to watch the docket himself or placed a man on guard in the courthouse during the intervening days to give him instant notice.
We do not agree with this contention. On the contrary, in respect to a case in the attitude of this case, we must apply the language of the court in Memphis Grocery Co. v. Anderson, 76 Miss. 322, 326, 24 So. 387, 388, dealing with a supersedeas upon appeal, when the court said: "But, without reference to our statutes, it appears to be well settled that, to make a supersedeas effective, the writ must be served upon the officer whose action is sought to be restrained by the supersedeas." Reason and justice concur in requiring the observance of this rule of notice in a case such as we have here before us. We quote again from Memphis Grocery Co. v. Anderson, supra, and from page 325 of 76 Miss., 24 So. 387, 388, where the court said: "The requirement that a writ shall issue and be served is a simple one, and one easily to be complied with." So here, it would have been a simple and convenient step to have issued notice to appellant that the bond had been filed and the supersedeas thereby made effective — much simpler and much easier than to require appellant to wait and watch at the courthouse from day to day and much easier and much simpler than the steps taken in this citation for contempt which would have been without occasion if only the simple and convenient notice of the supersedeas had been issued and served. See, also, Wilson v. North Carolina, 169 U.S. 586, 18 S.Ct. 435, 42 L.Ed. 865, 872.
Reversed, and appellant discharged.