CONTEMPT.

[Hamilton Circuit Court,

1900.]

Smith, Swing and Giffen, JJ.

#### Sallie I. Cassily v. John Church Co.

1. Contempt — Violation oe Order by Stranger.

A person cannot be punished as in contempt for violation of an order issued in a case to which he is a stranger and of which he has no knowledge.

2. Action to Test Validity oe Seizure not Contempt.

An action to test the regularity of proceedings under which property is seized by an order of court and held by the sheriff is no longer regarded asan infringement of the prerogative of the court, but is favored as a ready and convenient method to test the legality of the first seizure.

3. Rules Applied.

Under these rules, and the holding in Sifford v. Beatty, 12 Ohio St., 189, that the seizure of the goods of B, under process against C, does not vest in the court out of which process issued, any jurisdiction over said goods and that an action to replevy same may be maintained by B, plaintiff in an action in replevin to recover goods held by a sheriff under order of sale issued in an action to foreclose a chattel mortgage, who was not a party to and had no knowledge bf the foreclosure suit, is not guilty of contempt of court.

Heard on Error.

*Shay &*Cogan, for plaintiff in error.

*Nathaniel*Wright, for the John Church Company.

Gieefn, J.

The plaintiff in error was adjudged guilty of contempt of the court of common pleas upon a charge that she caused a writ of replevin to issue from the court of a justice of the peace for property in the posses*462sion of the sheriff under an order of sale issued in an action to foreclose a chattel mortgage. She was a stranger to the suit, and there is no allegation that she had knowledge of the order of sale or" of the authority under which the sheriff held the property.

Formerly any' attempt to interfere with goods in the custody of the law, or held by an officer, or by any legal process, was regarded as a contempt and punished severely; but this rule has been greatly-modified, and an action to test the regularity or legality of the proceedings is no longer regarded as an infringement of the sacred prerogative of the' court, but is favored as a ready and convenient method to test the legality of the first seizure. Cobby on Replevin, secs. 299 and 800.

There is no statement in the charges of contempt that the mortgagor was the owner of the property seized, nor does the court so find, and unless it did belong to her the seizure was illegal.

In Sifford v. Beatty, 12 Ohio St., 189, it is held:

> “ That a seizure of the goods of B, under process against C, does not vest in the circuit court (United States) out of which the process issued, any jurisdiction over said goods, and that an action to" replevy the same may be maintained by B in-the courts of the state.”

And in speaking of the rule “ that among equal or concurrent jurisdictions, that is exclusive which first attached,” Peck, J., says, at page 198:

> 1 ‘ The cases in which such collisions have occurred are either proceedings strictly *in rem,*where the *res*and not its *ownership*is in controversy, or seizures upon execution or in attachment for the debts of the *owner*and where the process seeks to subject *his interest therein*and cases where the possession and management of specific real or personal property has been délegated by a court to its receiver; and in all these cases the maxim before alluded to has been applied; but it will be seen at a glance that an unlawful effort to subject the property of B, to the payment of the debts of C, does not fall within either class.”

The doctrine of that case seems to be in conflict with a number of cases cited by counsel, notably Covell v. Heyman, 111 U. S., 176; but it is nevertheless the law of this state.

Section 5640, Rev. Stat., provides that a person may be punished as for a contempt for disobedience of or resistance to an order of court; but how can he be said to disobey or resist an order of which he has no knowledge and which is not addressed to him ? He could have only a constructive notice of the proceedings in the pending suit.

The general rule is that a person can not be punished as for a contempt for the violation of an order issued in a cause to which he is a stranger (7 Am. & Eng. Enc. of Raw, 2d Ed., p. 58).

Judgment reversed.