The semi-weekly messenger. [volume] (Wilmington, N.C.) 1897-1908, 1904-06-07

"a 4 III 80
VA sobef ana seems to say s1ntroduee
evidense1f You dare I WI ~pnksevery-
OF them. 1t Is well settled hat any
person restrained OF his liberty by the
order or Judgment of any court finding
him ~ufitysof contempt. is entitled to
the writ OF nabeas corpus, and that
upon the return thereof. the court win
inquire into the validity OF such order
or Judgment and Jurisdiction OF court
to make SINE. II IL be upon rhe face
% the return or pom the record before
he court that the conduct OF petition
srs Is not within the statutes defining
coH:empfs. or that the judge IS without
Jurisdiction OF the subject matter or
person, the petitioner should be dis
charged from custody. The General
Assembly has clearly defined what ac;s
snail constitute contempt, and has fur
IA II declared The several ects. neg
lec.s and omissions OF d1iy. maifeas-
ancSS, mtSfsasances and lorfeasances.
above specified ard described. shall Re
only acts, regiects and omissions OF
duty, m~alfeasances. misfeasances and
n~on{easa pcek. which shall be the sub
ject OF Contempt OF court And II there
&c any parts OF common law now IN
force in this state, which recognized
other acts, negiects. omissions. Of duty.
-malteasances. misfeasances and nom
~feasances besides those specified and
described above. the same are hereby
repealed and annulled."
There is no room for construction or
controversy in respect to the law upon
this subject This court has expressly
held that it is within the power OF the
legislature 20 define contempts. Eek
Parte Schenck, s. North CaroliEa SIS.
We are clearly of the eginion that the
acts with which the petitioners are
charged. 10 Nd come within the definf-
ton and do not eonstitut- contempt.
1t is an elementary princi "a of Law
without any exception thai no man
shall be adjudged guilty of a crime
or misdemeanor or be deprived OF his
life, liberty or property, until be shall
have an opportunity to be heard in HE
defense. It is a principle never to be
lost sight OF. that no person should be
deprived of his liberty or rights with
out notice and opportunity 10 defend
them. This right is guaranteed by the
constitution. Hence it is that no court
will give judment against any person.
unless such person has opportunity OF
showing cause against it Judgment
entered up otherwise would be a mere
nullidity.- Hamilton vs.. Adams. 2 Mass
i61. We are therefore of the opinions:
: list. That upon the return and record
DSlOTS US, L. oOCs MI ppSA 80
petitioners are guilty Of any contempt
of court. ~
End. That the judgment rendered in
their absence and without notice and
without opportunity to be heard. is in
valid. and they are entitled to be dis
charged from custody.
1t is so ordered.
No costs of affidavits will be taxed;
other costs will be taxed against the
county of Robson"
The following consent decree was
signed by Judge PEBBLES:
North Carolina, Cumberland County,
in Superior court, in re n. A. Mclean
and others.
IT il ordered IN this case, by consent,
that the answer OF each of the respon-
dents be amended by inserting in Ar
ticle Il Of the answer. after the words
"Offcial charac or words "Or personal
integrity. 1t appearing to the court
from the answer as thus amended, that
each of the respondents has purged
himself Of all contempt, under the rul-
ing of our Supreme court inthe matter
Of 3. F. Moore and others, reported IN
GO North Carolina Reports the rule as
to each of the sal respondents is here
by discharged. No costs to be taxed
r. 3. PEBBLES, Judge.
The following attorneys signed:
G.. NJ. Busbee. c.. w. Tillett, U: l.
Spence . Robinson & Shaw and Jonh
D.. shaw r., for respondents; 1. NJ.
Argo. w. H Day, for Judge Peebes.
Judge PEBBLES then made the follow
ing order:
Cumberland County, Superior Court,
In re N. A. Mclean ct al.
Herein it is ordered by consent that
all narties have Leave to withdraw any
and all amdavits filed by them resfec~
lively in the above entitled proceeding
and all other papers,, including RUE
and answers and orders and the cisrA
Of the Superior court of Robson coun-
ty is hereby directed to erase from ms
records any entries whatever on ms
records in the said proceedings.
r. B.. PEBBLES, Judge etc.
Thus the famous case goes off the
docket.