Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1875-07-09
THE CONTEMPT CASE.
Petition OF Foley Dismissed by Char :
ceIIOr walker for Want of JuFis-
dIett0H-OpIniOn of the
Chancellor.

The following decision ia the case OF
Foley as. M'MahOn and the police COM
missioners was rendered by Chancellor
Walker yesterday:
''The petition for contempt in this case
must be dismissed, at the cost OF the Pc
titioner. If the case were pending in
this court, and the injunction undis-
solved, ! have no doubt that the facts
alleged, and proven, would be sufficient
to sustain the petition. But the iDjunc-
ton was dissolved by this court, by an
introductory order. Subsequently, and
at another day OF the term, the case was
heard on bill, and answer, and the bill
dismissed. From this decree the COM
plainant appealed. l think it clear,
upon well settled general principles, that
he thereby removed the case from this to
the supreme court, and this court hssno
jurisdiction to entertain this proceeding.
[ do not think it necessary to set forth
the views upon which this conclusion is
reached, because they have been dig
cussed between court and counsel"
We regret that Chancellor Walker has
not given some of the grounds upon
which his opinion is based, for thereby
the quC1tion as to the authority, if not,
indeed, the duty, of an inferior court to
protect q process Of the above nature
Issuing from it when the same is restored
by the confirmed appeal to the supreme
count, would have been set before the
public and fins 'ly adjudicated, as this,
we believe, is the first time such ques-
ton has been presented in Tennessee,
there being but little advisory upon the
point in the decisions Of other States of
the Union or of England. Hence the
interest naturally appertaining to the
question and that of the chancellOI's
reasoning uLOu which his decree Is based.
The opinion, however, is definite as to
the fact that the chancellor will not pro-
tect, go to speak, an injunction which he
has dissolved by an ib.erlOcUtOry O1deT,
and when subsequently the case has
been heard and dismissed upon bill and
answer, though the same may be restored
by an appeal. But while the opinion
comedies that the appeal has restored
the injunction in full force, or at least
that the supreme court has so held, it
nevertheless fails to recognize juris 1ic-
ton in the case, and with it its entire
merits and bearing having been re-
moved to the higher tribunal. While
this may be reasonably inferred from the
chancellOr's admission that the facts
alleged and proved would be sufficient
to sustain the petition, yet this is upon
the hypothesis that the case was pend
ing in said chancery court, and
the Injunction uudissOived Uy any
action, or decree, or order OF said
court. Hence the chancellor has
thrown upon the supreme court the re-
spOnsibility Of furnishing the contempt,
and if we accept the premise, want OF
Jurisdiction, etc, the conclusion does
not seem Illogical or at variance with
the deduction Of in iicial reasoning. For
1t is to be seen that the order Of the
supreme court was not mandatory to the
chancery court, and the obligation Of
the latter tribunal to recognize the same
must have been inside OF the peculiar
nature Of the case and with due refer
ence to its relations, previous order, etc,
in the petition, etc. The question Is,
therefore, all the more interesting, and
for its calculation merely, not because Of
any error or supposed error in the Opin-
ion Of Chancellor Walker, had we wish
ed its discussion. The counsel for Foley,
we learn, will, on the first Day Of the
coming session OF the supreme court,
apply for an attachment against the de.
PENDANTS Gud auleavOr to have the in
junction Obeyei. IL the supreme court
recognize a failure to obey the order
made in this case, it will undoubtedly
punish those in contempt.