Opinion
File No. 8162.
Opinion filed June 9, 1939.
Discovery.
Trial court's finding that defendant failed to appear and testify at examination before trial was insufficient to justify entry of judgment and order holding defendant in contempt of court where question presented by affidavit was whether defendant acted willfully and contumaciously in not waiting for referee and in refusing to return when called, and trial court made no finding on that issue.
Appeal from Circuit Court, Walworth County; HON. J.H. BOTTUM, Judge.
Action by the Nash-Finch Company against Dave Raich, doing business under the name and style of Mobridge Fruit Company, and also as Dave's Market, to recover a sum of money allegedly due as the balance of an account for goods, wares, and merchandise. From a judgment and an order holding defendant in contempt of court, defendant appeals.
Reversed.
P.C. Hvistendahl and Morrison Skaug, all of Mobridge, for Appellant.
G.T. Mickelson, of Selby, for Respondent.
In an action pending in circuit court of Walworth County in which appellant was defendant, he was cited to appear for examination before trial. At the time and place fixed, appellant did appear with counsel. The referee appointed to take the testimony was not present, however, and after some waiting appellant returned to his home twenty-three miles away. After arriving at his home appellant received a telephone call from the referee asking him to return for the hearing, which appellant refused to do. The trial court issued an order to show cause, based upon affidavits, directing appellant to show cause why he should not be held in contempt of court "for his failure to attend and testify at the examination." Appellant filed affidavits in justification of his action in not waiting for the referee to appear. The real question presented to the trial court by the affidavit was whether the appellant acted wilfully or contumaciously in not waiting for the referee and refusing to return when called. Upon this issue the trial court made no finding whatsoever. The trial court simply found that appellant failed to appear and testify. This is not sufficient. Hoffman v. Hoffman, 26 S.D. 34, 127 N.W. 478; 30 L.R.A., N.S., 564, Ann. Cas. 1913A, 956; Krueger v. Krueger, 32 S.D. 470, 143 N.W. 368; Gockowski v. Gockowski, 47 S.D. 640, 201 N.W. 554; State ex rel. Burke v. Marso, 63 S.D. 38, 256 N.W. 257; Simmons v. Simmons, 66 S.D. 76, 278 N.W. 537.
In the Hoffman case it was said: "* * * in view of the unusual nature of contempt proceedings, and, further, in order to carefully guard the rights of our citizens, no court should render any judgment punishing one for contempt of such court without either by separate findings of fact or by incorporating findings in the judgment itself clearly and specifically find the facts upon which the judgment of the court is based."
The judgment and order appealed from are reversed.
All the Judges concur.