, 1890-11-18
BEHIND The BARS
Probate Judge Bergman A~djudged
Guilty of Contempt
For Not Turning Over the Papers
of His Office.
The Question Argued at Length in
the District Court.
Judge Scott Turns Bergman Over
to the Sheriff
To be Lodged Securely in the
County Jail.

Judge Bergman's case has taken an
extremely sensational turn. the judge
having been sent to Jail Tor contempt.
The order to show cause why he should
not be adjudged guilty OF contempt and
punished accordingly, for having failed to
turn over the books, papers and proceed
inRs of 1.-THE late probate court" to the
sheriff to be transferred to the district
court, was made returnable yesterdaS
morning.
AT the hour named there was quite a
large attendance in the district court,
Judge Scott presiding. Judge Bergman
was represented by A. G. Campbell and
W. r. Stoll while Judge Lacey and J..
NJ. Davidson argued the other side.
Mr.. Stoll made the argument in behalf
Judge Bergman. He commended that in
proceedings for contempt committed
outside of the presence and hearing of
the court, there must be some proceed
ings in the court-a party plaintiff as well
as a party defendant. When a person
complains of the act of a person who is
supposed to he guilty of contempt he
must make application to the court, and
must base bis allegations upon an affidavit
which must state facts and not c%onclus-
ions of law. Upon a proper affidavit
being exhibited to tho court, the court Is
sues an order which must be accompanied
by the the affidavit and must itself show
it 10 a matter before the court aud the or
der must be signed by the Judge.
10 this case no state, county or court is
mentioned. A paper was served upon
the probate judge entitled I'm the matter
Of the records of the lste probate court"
and nothing more. 1t alleged no facts.
but took for granted that the probate
court had been abolished. II did not show
that Bergman had been guilty OF any acts
which impaired the rights of any one or
hindered or prevented any one from ros-
sessing any rights be might have.
The court of its own motion couldn't
issue any order bringing any one into
contempt, because by SO doing it makes
itself a party, and a new Judge would
therefore have to try the case.
If Bergman is holding the records of
the probate court from the district, some
party interested in probate matters must
come in and complain Of the action of
Bergman. He must base the application
on an affidavit stating the facts wherein
Bergman's offense consisted. This was
not done in this case. There is nothing
in the paper to show that any parties in
the case were in court. No order was
signed by the judge.
The court sits as a court, unbiased and
without any interest except to decide the
questions between the party complaining
against Bergman's actions and Bergman.
Upon proper application for an order,
supported by affidavit, it was the duty of
the court to permit and direct in its order
the time when Bergman could come
into court and show the reason why he
didn't turn the records of his office over
to the court.
The so-cal,ed order, which nobody Ap-
piled tor, requested him to turn over to
the sheriff, who had no interest IN the
case. A mere request" to Bergman,
unaccompanied by a signature aud served
by the sheriff is not sufficient. The law
Is that there must be a party or parties
to the case. the application must be made
by the party or parties injured and based
upon an affidavit showing wherein the
party or parties have been injured. In
the paper served upon Judge Bergman
there were nothing but conclusions of the
law. The court could not issue even a
mandamus upon proper proceedings,
where substantial doubt existed as to the
duty of a public officer. Much less
colld a court on its own motion, without
application, issue an order compelling a
public officer to do certain acts.
Section l, 10, II and l9 of the con-
stitution were cited. The constitution in
enumerating the courts which will have
jurisdiction omits the probate court.
Section II provides that when the consti-
tuition goes INTO effect the records of the
probate court shall be turned over to the
district court.
! Section 10 provides that all county and