The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-06-03

supreme court OF the DlllIru. SltlcS
Gn re Sawyer, 124 L. S. zoo. at page
221) where it is said
"The Circuit court being without
jurisdiction to entertain the bill H.
equity for an injunction, al it's pro-
ceedingS in the exercise of the jul is
diction which it assumed are null and
void The restraining order, in the
nature of an injunction it has no
power to make. The adjudication
that the defendants were guilty of Il
contempt il disregarding that order is
equally void, their detention by the
marshal under that adjudication is
without authority of law, and they
are entitled to he discharged"
Many other cases will he found
in the United States Supreme court
reports to the same effect. These are
cited i'll Ex Parte Ayres. 123 L. 5.
443-all being upon question of habe-
as corpus end in Al &C them the
prisoners were discharged because the
court had no jurisdiction of the main
action out Of which the contempt
proceedings grew.
In in re John Norton, 10 Mich. 907,
the affidavit was held insufficient to
give the court iurisdiction of the case,
ana it was adjudSed that II witness
could not be punished for contempt
for refusing to answer questions. The
w
pus and the proceedings declared void.
See also Holman VS.. Mayer, 81
Te~ 55S.
People VS.. O'Neill, AZ Cal. 100.
The court was without jurisdiction
of the case of n. A. Mclean and
others for the following reasons:
/. reference to chapter II of the
Code on Contempt. will show that all
proceedings as for contempt must be
N rafprpnc,l to some mar
ticular action than pending in the
court. In fact. section 6T6 expressly
provides that the proceedings as for
contempt must apply Ito an action
then pending in court Crom'rtie
VS.. Comrs 85 n. c., p. 215. This shows
that these proceedings are in their
nature anciIlary to some particular
action pending in a court. Passing by
the sufficiency of the affidavit on this
point, it is plain that ii any acts of
contempt were committed ny n. a.
McLain and others, in reference to
any action pending in court, these ac
tions were pending in the Superior
court Of Robson county. In other
words, this proceeding as for con-
tempt was a matter connected with
actions pending in the Superior court
of Robson county. This being true,
Judge PEBBLES had no power to do
anything in reference thereto outside
of Robeson county.
Again, on general principles it is
true that this being a Robson county
matter, the judge had no jurisdiction
to act outside of that county Tn
Jurisdiction of a superior court Judge,
as to matters in a particular county,
must BE- exercised in that county, and
his territorial jurisdiction is as limited
rs that of clerk Of tn Super iGr
court, except where the Statrte eX-
pressly provides otherwise. Judge
PEBBLES had no more over to issue
papers or sign orders in Cumberland
county relating to matters in Robe
son county than the clerk of RobeSOn
county woU.d have had TO have gone
over into Cumberland county and is
sued an order roturnable before him
self in Cumberland county.
In in re Deaton. 1cJ \. G.. oG, at
page 62 the court says that proceed
Ings as for contempt ARE heard in
the same county whore the oHense
was committed"
In McNeiu VS.. Hodges, 90 n. G.
245, it vas expressly held by tle Su-
preme court that a judge of the Su
perior court cannot except III specified
cases exercise jurisdiction ir one
county over matter which is properly
triab.e il another county. 70 the
same effect also is Bear vs.. Cohen, 65
n. c. ST..
Judge PEBBLES had no more juris-
Gfction of this matter in Cumberland
county than he did in Northampton.
Besides that, this was not merely
summons. 1t was an order on his
part wherein he adjudged \. a. Nc
Lean and others prima facie guilty OF
contempt.
The ploceedir g was further >oid
for that it was made retu hable IN
Cumberland county. instead of III
iiobeson. \ judge OF the superior
court has no mole power to make
such q proceeding returnable in
county which is not the proper one,
than the clerk Of the court would
have to issue a summons retnrnap'e in
a. county other than his own. 1t has
| been held that in suvh case the pro
ceCdjpg is VoIG.
! HoWerton VS.. Tate, &C n. G. 431.
2. Judge PEBBLES was without juris-
| diction in the case of M. A. Mclean
| and others because the affidavit IN that
| proceeding failed to set forth any acts
| constituting contempt, and sufflclent
| affidavit was necessary in order to give
! the court Jurisdiction Practically all
of the modern authorities agree that
| the affidavit is a jurisdictional ele-
| ment in proceedings for constructive
| contempt: and it is further held that
the affidavit must be sufficient and
! that nothing can be taken for granted
or implied and If the affidavit is not
sufficient, the proceeding is as void as
| il it was issued without any affidavit
at all.
In in re Deaton, 105 n. c. it is said
on page GA:
proceedings as for contempt
should always be based upon affida
Wits.
In in re Wood, 80 Mich, 33, it waa
said:
"The facts material to our decision
are that Mr. Wood has been arrest
| ed and ordered to be detained and
brought before the court to answer for
an alleged contempt not committed
| in its immediate presence and view,
without the misconduct which is al
legged to constitute the contempt be-
ing proved to the satisfaction of the
court by affidavit. Clearly the court
was proceeding without jurisdiction
and the petitioner should be dis
charged"
In Batchelder VS.. Moore, AZ Cal. Ais,
it is said:
1.-THE power of the court to punish
Continued on Sixth Page)