The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-07-16
OPINION OF THE COURT BY FREAR, J

OPINION OF THE COURT BY FREAR, J.
The substantial facts of this case
are, that the petitioner Aldr1ch was
adiudicated a bankrupt and Henry
Davis was his elected and qualified
Assignee; that the trust was not set
tied and the Assignee on learning
that the bankrupt was intending TO
leave this country, applied to a
Judge of the Circuit COnrt First
Circuit, for a writ of ne ereat stating
that the estate of the bankrupt was
unsettled and that his presence was
necessary TO enable the assignee to
settle the same aud that the absence
of the bankrupt would prevent the
Assignee from obtaining possession
of certain property which the bank
rupt was entitled to in the State of
California. The Circuit Judge
issued the writ Of ne e.reat which en-
Joined the bankrupt under pain of
being adjudged guilty of contempt
from leaving or attempting to leave
this country without the leave of
court and ordered him to show cause
why the writ should not be made
absolute.
The writ was issued on the Both
day of May last. The respondent
made answer on the 9Th of June.
On the return day, June II, the
Assignee moved that the bankrupt
be attached for violation of the in
junction issued, alleging an attempt
TO leave this country on the 9Th of
June by and on the brig
"L'Avveuier." The Court heard the
proofs and adiudged the bankrupt
guilty of contempt and ordered him
committed to Oahu Prison for
thirty days unless he shall sooner
be discharged by this Court" The
warrant TO carry the order into effect
was issued the 18th of June, and de-
livered to the Marshal for execution.
Thereafter on the same day a Writ
of certtorali was directed to the Cir
cult Judge. in response to which the
record in the contempt and ne Great
proceedings were certified to this
Court.
The object in bringing the record
here is to determine the validity OF
the order adjudging the bankrupt
guilty OF contempt; the argument
for the bankrupt being that the IN
junction of ne Great was void because
the Circuit Judge had no jurisdiction
to issue it; and that the breach Of a
void Injunction is not a contempt.
We are of the opinion that the
order of ne Great was not void. The
Circuit Judge sat as a Court of
record Of general jurisdiction and
the statute Uaws of 1892, Oh. LVll,
Sec. 81, Subdiv. 81 expressly empow-
cred him "To issue writs OF
zndndamus ne Great regnO," without de-
fining the cases to which such wrlts
are applicable. Whether this ls a
proper case for the issuance of the
writ is a question which we cannot
now consider. The statute (Laws OF
1876, CHI. xxx, Secs. q and 33)
authorizes us to set aside upon
certiorart only such proceedings as
are absolutely void. In this case the
ne Great proceedings were at most
voidable only. Even if the petition
showed upon its face that the facts
were not such as to justify the issu-
ance of the writ, the proper course
for the bankrupt was, not to dlsre
gard it, but TO apply to the Judge
who issued it for an order dlscharg-
ing it. We cannot upon certt0rarE
brought to determine the validity
of the contempt proceedings consider
the ne Great proceedings upon their
merits.
In The People V. Spalding, 2
Paige, 329, Chancellor Walworth
SAID: while the Injunction remain
ed In force, it was the duty of the
vice chancellor to punish every
breach thereof; and in no case can a !
be permitted to disobey |
an Injunction regularly issued, what
ever may be the final decision of the |
Court upon the merits of the cause. |
If there is not sufficient equity on |
the face of the bill to support the In
junction, the proper course for the
defendant Is to apply at once for
x and he may
again move the Court upon the COM
ing In of his answer"
Again, "A defendant against whom
there is primd fdcte evidence of being
guilty of a breach of an Injunction
cannot be heard upon motion to
discharge ne Great against him III
the same cause until be has purged
of the contempt"
2 Beach, Mod. Eq. Prac., Sec. 624.
IL therefore the bankrupt was not
entitled to be heard by the Judge of
original Jurisdiction upon a motion
o discharge the writ Of ne Great until
re had purged himself of the con-
empt, how can he expect this Court
% do practically the same thing?
1t is unnecessary for us to consider
be other arguments OF counsel.
The order of certi0rari is dissolved, |
osts to be paid by the petitioner.
G. w. Ashford for petitioner; 4, ).
iartwell contra.
Honolulu, July 6, 1894.