Opinion
No. 41,143
Opinion filed July 10, 1959.
SYLLABUS BY THE COURT
CONTEMPT — Indirect Contempt — Failure to File Formal Accusation — Effect. In a proceeding in contempt, growing out of a receivership, where the application showed on its face that indirect contempt under G.S. 1949, 20-1202, was involved, and although requests for formal accusation were made by respondent's attorneys, no formal accusation against him was filed, as required by G.S. 1949, 20-1204, and he was thereby deprived of an opportunity to answer, it is held, the trial court erred in denying respondent's requests and the final order finding him in contempt of court is void and of no force and effect.
Appeal from Harvey district court; GEORGE L. ALLISON, judge. Opinion filed July 10, 1959. Judgment reversed.
Emmet A. Blaes, of Wichita, argued the cause, and A.W. Hershberger, Richard Jones, Wm. P. Thompson, H.E. Jones, Jerome E. Jones, William E. Palmer, Robert Roth, and Harry L. Hobson, all of Wichita, and Alden E. Branine, C. Fred Ice, and Arthur N. Turner, all of Newton, were with him on the briefs for the appellant.
J. Rodney Stone, of Newton, argued the cause, and George Robb and Kenneth G. Speir, both of Newton, were with him on the briefs for the plaintiff, who is not concerned with the contempt order but who is appellee in case No. 41,142, Weber v. Sutorius Bread Company, 185 Kan. 171, 341 P.2d 959, this day decided.
The opinion of the court was delivered by
This is an appeal from an order of the trial court overruling a motion by appellant (as respondent) to quash a previously issued contempt citation finding him in contempt of court, assessing a fine of $250.00, and sentencing him to the county jail for thirty days or until he purged himself by complying with the court's order.
The suit originated by the filing of plaintiff's petition wherein the appointment of a receiver was sought for the defendant corporation. The trial court appointed a receiver and issued an order whereby appellant, as chairman of the defendant's board of directors, ". . . and all persons in active concert with him . . ." were restrained and enjoined from interfering with the receiver or the control and operation of the defendant corporation or its assets and were ordered to forthwith deliver to the receiver all assets and property, books and records of defendant.
A verified motion for citation was filed by the receiver (who had accompanied the Saline county sheriff when the above order was served on appellant in the defendant's office in Salina on February 28, 1958) requesting a court order directing appellant to appear forthwith to show cause why he should not be adjudged in contempt because he had stated that he did not know where the assets, books, and records of the corporation were and he had failed and refused to comply with the court's order. A further purpose of his appearance was to require appellant to disclose the required information. On March 1, 1958, the trial court ordered appellant, as respondent, to appear at 10:00 a.m. on March 3, 1958, and further that service of a certified copy of such order was to be in lieu of a formal issuance and service of a citation upon him. This was served on appellant on March 1, 1958.
On March 3, 1958, appellant filed a verified motion to quash showing that the order of citation was made without appellant or his attorneys having any opportunity to be present at the hearing on the motion; that appellant was not a party to the suit; that on February 28, 1958, prior to issuance of the citation, appellant's attorneys had advised the trial court they desired to be heard on any further proceedings, orders, or citations sought and had been advised by the court that a hearing as to other disputed matters on Saturday, March 1, 1958, was impossible but that such matters would be heard on March 4, 1958; and finally, it was stated that the receiver's motion for citation did not contain sufficient facts upon which appellant could be adjudged guilty of contempt. This motion was overruled by the trial court.
Appellant then moved for an order requiring the receiver to file proper accusation, which the trial court overruled and required appellant to take the stand.
At the outset of this proceeding the application for citation showed on its face that an indirect contempt of court was involved. G.S. 1949, 20-1202.) At that time there had been no accusation filed, as required by our statute, G.S. 1949, 20-1204. Possibly appellant could have waived the filing of a formal accusation but he did not do so. On the contrary, his counsel made a specific oral request to the trial court, which appears in the record, that the receiver be required to file a formal accusation, thereby giving appellant an opportunity to answer. As stated in In re Gambrell, 160 Kan. 620, 623, 164 P.2d 122, these matters are jurisdictional and the absence of them renders the order void. In other words, the trial court was in error in denying appellant's requests and as a result of the hearing, the final order finding appellant in contempt of court was void and of no force and effect.
Judgment reversed.