HENDERSON, Judge.
This is an original application to this court for a writ of habeas corpus. It appears that heretofore, in the District Court of Harris County, Drew and others brought a suit against the Houston Cemetery Company, a corporation, and others, and, among other things, prayed for the appointment of a receiver. William Christian was appointed receiver, and, in the judgment appointing him, he was ordered, after giving bond and making affidavit, etc., to take possession of all the property of the Houston Cemetery Company, and, among other things certain described notes, the minute book of said corporation, alleged to be in the hands of Thomas Tinsley, and also $492.52, a trust fund, alleged to be in the hands of said Thomas Tinsley. Thomas Tinsley was a defendant in said suit, and the order was directed to him to turn over said property to the receiver. Said receiver demanded the same, and, on the refusal of said Tinsley to make the delivery thereof, a writ of attachment was served on him, and he was brought before the court to show cause why he should not be committed for contempt of court in failing and refusing to deliver said property to the receiver. The applicant, Tinsley, filed his answer, and the matter was presented to the court, evidence heard on the issues presented, and the court made its order fining said Thomas Tinsley in the sum of $100, committing him to the custody of the sheriff and to the jail of Harris County as for a contempt of court, on account of his- failure to turn over
and deliver said property to the receiver; and the sheriff was instructed to hold him until said fine was paid, and, further, to retain him in custoly until said property should he delivered to the receiver, or until the further order of the court. Said Thomas Tinsley made an application for a writ of habeas corpus to this court, which was granted, and the writ issued. On his being brought before the court, the respondent moved to dismiss the application and said writ, and remand the relato" to the sheriff of Harris County, for the reason “that said applicatioi fails to show, either by the recitals therein or the exhibits thereto attached, that the judgment from which the relief is sought is void; bu1 on the contrary, the judgment attached thereto shows upon its face an adjudication, and the relator had willfully placed himself in contempt of said court, and adjudicates the question as a fact here set up to avoid said judgment against relator. If the truth of all of the facts alleged b> conceded, the same are not sufficient in law to nullify the judgment ren dered. (2) Said application is insufficient for the further reason that i! fails to show that the relator has complied, so far as was within hit power, with the orders of the court on which the' contempt is based.’’ This brings before us the question whether or not the matters and things contained in the application show a void judgment, or one which is merely erroneous; the rule being that where a court has jurisdiction over the subject-matter, although its judgment may be erroneous, it is not void, and in such case it cannot be reviewed on habeas corpus, but where the court is without jurisdiction of the subject-matter or of the parties, or lacks power to make the order in the particular ease, it cannot punish for contempt or disobedience of such order. See, Railroad Co. v. Wear (Mo. Sup.), 36 S. W. Rep., 357; In re McCain (S. D.), 68 N. W. Rep., 163; Ex parte Kearney, 7 Wheat., 38; Ex parte Kilgore,
3
Tex. Crim. App., 247. On the motion to dismiss, the question is to be tried on the application for the writ, and we will set out such parts of the petition as are essential to a disposition of this case. As stated before, the relator sets out in his application for the writ the proceedings on which the court below committed him for contempt—that is, perhaps not all of the proceedings, but the substantial features of the suit, and the main facts upon which the court based its action—which are as follows: On the 23rd of April, 1896, Drew and others (some of the stockholders in the Houston Cemetery Company, a private corporation) brought suit in the District Court of Harris County against said corporation, and Thomas Tinsley and others were made parties defendant therein. The corporation and the defendant answered in said suit. Among other things, the object of the suit was the appointment of a receiver to take charge of the property of the alleged insolvent corporation. On the hearing, William Christian was appointed receiver, and the court made its order requiring Thomas Tinsley to turn over and deliver to said receiver all of the property of said corporation in his possession. On the 21st of February, 1897, thereafter, said receiver demanded of said Tinsley that he turn over to him a list of the notes described in Exhibit
A to the application, and a certain book, known as the “minute book” of said corporation, and also $492.52 in cash, alleged to be a trust fund in the possession of said Tinsley, and belonging to said company. It is alleged that the applicant refused to turn over this property to the receiver on the ground that he did not have and never had in his possession certain of said notes, which are set out in said petition, and that the remainder of said notes (as -set out in Exhibit B to the petition) and the minute book of said corporation said applicant, Tinsley, claimed hold and to have the right to hold in possession as collateral security for a certain note of $1500 for money loaned by him to said corporation prior to the appointment of the receiver. As to the $492.52, applicant alleges that he never held said money in trust, but that one Wisby held the same, and had appropriated it, and that applicant had simply assumed to pay the same to the corporation, and that he did not hold the same in trust, but that it was a debt due by him to the company. He-further alleges that he is solvent, and able to respond to any judgment that may be rendered against him in favor of the receiver on account of said property. Applicant alleges that said order requiring him to surrender certain property and pay over said money is without due course of law, and is null and void, and that an adjudication by the court that he was guilty of contempt in refusing and failing to do so, and fining him $100, is null and void. He fui-ther contends that said judgment is null and void because John 6. Tod, the judge who tried said cause, was at the date thereof related to C. H. Milby and wife, Maggie Milby, within the third degree, and that O. H. and Maggie Milby were stockholders in said corporation. He further says that said judgment and commitment were null and void because the imprisonment is for an uncertain and indefinite period of time, and because he is not able to comply with said order. And he further alleges that the statute fixes the amount of punishment at afine of $100 and imprisonment not exceeding three days, and that the judgment was excessive, and so null and void. He further charges that the matters set up and alleged do not and could not constitute a contempt, and that his confinement under said order of the court is null and void. In connection with the petition, the judgment of the court, appointing a receiver and ordering said Thomas Tinsley to turn over the property in his possession to the receiver, William Christian, is attached thereto as an exhibit. Also, the following by exhibits: An application on the part of said receiver, showing to the court his demand upon Tinsley for said property, and his refusal to turn over and surrender the same to him, and praying that he appear at the court house, at a time fixed by the court, to show cause why he should not be punished for his misconduct in disobeying said order, as for a contempt of court. Also, the order of the court based thereon, requiring the defendant,. Thomas Tinsley, to show cause before the District Court of Harris County why he should not be punished for contempt of court in disobeying thé decree of the court of April 3, 1896, etc. And also the judgment of the court on said application, as follows: “Monday, Feb
ruary 8th, 1897. (No. 18,969.) Octavius C. Drew et al. v. Houston Cemetery Company et al. In the Matter of William Christian, as Receiver Herein, Informant, against Thomas Tinsley, Respondent, for Contempt, etc. This 6th day of February, A. D. 1897, came on to be heard in open court the proceedings for contempt of this, the District Court of Harris County, Texas, against the respondent, Thomas Tinsley, upon the affidavit of said William Christian, as receiver, for a rule to show cause, etc., and the court’s rule to show cause therein, both of February 2, 1897, and the answer of said respondent to such rule, and the replication of said informant to such answer, both this day filed herein; said respondent meantime having had due and reasonable notice in this behalf, and appeared in person and by attorney, and announced ready for the hearing: And the court having heard such affidavit, rule to show cause, answer and replication, and the evidence adduced, both oral and written, in support of' the issues so tendered and joined, as well as the argument of counsel, doth find and declare: That the facts set forth in said affidavit and the special plea of said replication are true as concerns the minute book, notes, and trust fund of four hundred ninety-two dollars and fifty-two cents, as herein- specified, and that said respondent, under the evidence adduced, has failed to show cause as required, by the answer aforesaid, good or sufficient in law. Therefore it is considered by the court, ordered, and adjudged that the said respondent, Thomas Tinsley, is guilty of a contempt of this court, in having willfully disobeyed the court’s order made and rendered in the above numbered and entitled cause on, to-wit: the 23rd day of April, A. D. 1896, appointing William Christian receiver of the property of every description of the Houston Cemetery Company, etc., etc., by failing and refusing to turn over to said William Christian, as such receiver, after he had taken the oath and given bond, which was approved, and duly qualified as such receiver, as required by said order, notwithstanding due and personal demand made therefor upon him (Thomas Tinsley) by said William Christian, receiver as aforesaid, and though having it then and now within his power and ability to comply, the following described property of, and beloning to, said Houston Cemetery Company, covered by such order, to which it was entitled; the same being then and still held and controlled by him (Thomas Tinsley) as an officer of said Houston Cemetery Company, to-wit: (1) The notes belonging to said Houston Cemetery Company, as its bills receivable then and thereto on hand, and covered by and embraced in said order of April 23, 1896, amounting to the sum of fourteen hundred and forty dollars and fifty cents, as shown by the schedule marked ‘Exhibit A,’ attached to the aforesaid affidavit, which schedule the clerk is directed to record on the minutes in connection herewith, and to be taken as a part hereof. (2) That certain book belonging to said Houston Cemetery Company, and known as its ‘minute book,’ then and there on hand, and covered by and embraced in said order of April 23, 1896. (3) The portion of the trust fund to which said Houston
Cemetery Company was entitled under its charter and by-laws, which accrued for and during the years A. D. 1894 and A. D. 1895, covered by and embraced in said order of April 23, 1896, amounting to the sum of four hundred ninety-two dollars and fifty-two cents. And the court doth further consider and adjudge, order and direct, that the said contemner, Thomas Tinsley, pay to the sheriff! of Harris County, Texas, 6, fine of one hundred dollars, as a punishment for the contempt aforesaid, and that he forthwith turn over and deliver to said William Christian, as receiver aforesaid, the said notes, minute book, and trust fund of four hundred ninety-two dollars and fifty-two cents, as an aid to the enforcement of the aforesaid order of April 23, 1896, and that in default of immediate payment of said fine, and of the delivery and turning over forthwith to said William Christian, as receiver aforesaid, of said notes, minute book and trust fund of four hundred ninety-two dollars and fifty-two cents, he, the said contemner, Thomas Tinsley, be imprisoned in the common jail of Harris County, Texas, until he shall pay the said fine of one hundred dollars as herein directed, and until he shall turn over and deliver to the said William Christian as aforesaid—the said sheriff affording him (said Thomas Tinsley) a reasonable opportunity to do so, if he shall so desire—the said notes, minute book, and trust fund of four hundred ninety-two dollars and fifty-two cents, and until he shall pay to the sheriff aforesaid his cost for executing the commitment hereunder, or until he shall be discharged by the further order of this court, and that, to carry this judgment into effect, the clerk of this court do forthwith, under his hand and the seal of this court, issue a commitment, in terms •of the law reciting generally the proceedings herein, and to which there •shall be attached, as Exhibit A thereof, a certified copy of the aforesaid order of April 23, 1896, under the seal of this court, and to which there shall also be attached, as Exhibit B thereof, the schedule of the aforesaid notes annexed to the aforesaid affidavit, or a copy of such schedule; and the clerk of this court shall also, in addition to the warrant of commitment, deliver to said sheriff a certified copy of this judgment, to be field by him as further evidence of his authority for the commitment hereby directed by the court. John G. Tod, Judge Eleventh Judicial District of Texas.” A schedule of the notes referred to in the above order accompanies this judgment. Following this order is a copy of the writ of commitment. All of these appear to us to be regular in form. As to the proposition of the relator that said judgment appointing a receiver is null and void because some of the stockholders were related to the judge making the appointment of the receiver, in view of the decision of the Supi'eme Court in said case, which was appealed, the same is not tenable. See, Cemetery Co. v. Drew (Tex. Civ. App.), 36 S. W. Rep., 802. The applicant refers us to a number of cases to support his contention that the court had no authority to make the order which it did, requiring the said Thomas Tinsley to turn over said property to the receiver—it being shown that he set up a claim thereto in his own right—
insisting that, if the court could enforce such order, it would be authorizing one person to take the property of another without due process of law; that, if the receiver had any claim to the same, the courts of'the country were open to him, and to recover the same he could bring his ■suit as any citizen, and that the action of the court in this regard was .tantamount to imprisoning the applicant for debt. Among other cases, he cites us to the case of Edrington v. Pridham, 65 Texas, 612. But we do not understand that case to decide the question of the power of the court to punish for contempt. This matter was not before the court. The question really decided was that the proceeding being originally in the nature of a contempt, and having been conducted as a contempt proceeding, a judgment for debt, with execution, could not be rendered against the defendant. The court say, in passing, that the “statute .authorizes the District Court to impose, for contempt, a fine not exceeding one hundred dollars; but if this limitation is unauthorized (Rap., Contempt, § 11), we cannot consider a judgment in favor of the receiver for §2500, to be collected by execution, as an exercise by the court of its inherent power to fine for contempt. Such a judgment does not vindicate the dignity of the court. It redresses private injury. The prosecution of the plaintiff in error for contempt did not warrant the civil judgment against him.” In Ex parte Hollis, 59 Cal., 405, the ■court held that Hollis was not a party to the suit, and the order requiring him to turn over certain property which he claimed as his individual property was without authority of law and void. This is a well-considered case, and a number of cases in bankruptcy are cited, and all these are to the same effect—that a court has no authority to act by its orders on a third party, and compel him to turn over property to an •officer appointed by the court. We quoté from Hollis’ case as follows: “The question therefore arises whether a superior court has authority to adjudge a party guilty of contempt, and to fine and imprison him, for not turning over to a receiver in insolvency moneys and effects, part of .which he claims adversely to the insolvent debtor, and the other part is also claimed adversely by a corporation with which he is not connected as an executive officer or director. We think such a power cannot be exercised over a party unless he has collected and holds the money and effects as trustee for the estate of the insolvent debtor, and the court lias jurisdiction over him as an officer of the court, or as a partj to the proceedings. Ex parte Perkins, 18 Cal., 64; Ex parte Smith, 53 Cal., 204; Ex parte Cohn, 55 Cal., 196. It is not claimed that the Real-Estate and Building Association was an officer of the court, or a party to the proceedings in insolvency, nor was the petitioner. Verifying the ■ answer of the insolvent debtor did not make him a party. Process against the corporation brought the corporation alone into court. Being in court, it verified and filed its pleadings according to law. It was the only party to the record. Neither the president, secretary, the individual directors, nor' stockholders were parties to the proceeding. Apperson v. Insurance Co., 38 N. J. Law, 272.” To the same effect is
the case of State v. Ball, 5 Wash., 387; 31 Pac., 975. Beach, Rec., §§ 216, 247, to which applicant refers, is simply to the effect that the court, in ordering the property to be turned over to a receiver, will not try the title to the property, and is not authorized to make an order, unless the party in possession is before the court. Thomp. Rec., §§ 6921, 6928, to which we are cited, is to the effect that the receiver has no right to seize goods in the possession of a stranger to the action, and make himself the arbitrator of the title and the right to the possession of said goods, but it is his duty to bring the proper action to recover possession. Process of contempt cannot be resorted to to force-third parties to deliver property of which he has never had possession to a receiver, though the receiver may have authority to obtain possession of the property from them by proper proceeding. To the same, effect is High, Rec., §§ 165-170, inclusive. In the ease before us the applicant was not a stranger to the proceeding. He avers that he was a-party, and he claims, not the fee in the notes and minute book, but simply that he had a lien on the same; and he insists that the court had no authority and no power to require him to surrender the same to the receiver, because, he says, having a lien, he was entitled to the possession. Now, there can be no question that the District Judge had jurisdiction of the case, had authority to appoint a receiver, and had authority to order and require the officers of the corporation to turn over the-property of the corporation in their hands to said receiver. The authorities go to the extent of holding that, even if the court should commit an error in the judgment as to the property, the parties before the court cannot refuse to surrender the property to the receiver. In Parker v. Browning, 8 Paige, 388, it is held that the receiver or the party who wishes an actual delivery of the property should call upon the master to-decide what property, legal or equitable, belonging to the defendant,, and to which the receiver is entitled under the order of the court, is in possession of the defendant, or under his power or control. And it is the duty of the master to direct the defendant to deliver to the receiver the actual possession of all such property, or to allow him to take possession thereof. If the defendant is dissatisfied with such decision of' the master, he must apply to the court to review the decision, or he will be compelled by process of contempt to comply with the master’s directions. Where property is in the possession of a third person, who-claims the right to retain it, the receiver must either proceeed by suit against him, or the complainant must make him a party to his suit, and apply to have the receiver to take the property in his hands, so that an order may be made for its delivery, which may be enforced by process of contempt. In Tolman v. Jones, 114 Ill., 148, 28 N. E. Rep., 464, it is held: Where a court of chancery has acquired jurisdiction over the property of an insolvent corporation, and of the defendant claiming the same, its order on the defendant to assign and turn over the property claimed by him to a receiver, for its preservation, must be obeyed, however erroneous it may be. And the fact that such order may be too broad, and
require the transfer of some of the property wrongfully, will not justify the defendant in re-fusing to obey. An error in the exercise of the jurisdiction of the court, in an order to one of the defendants to assign and deliver to the receiver some property not belonging to the corporation, will not render the order void as to such property, and justify the defendant in refusing to obey the same. In such case the test of jurisdiction as to the subject-matter will be the allegation of the bill, and not the proof under it. But even if the order of the court is void in part, in requiring certain property not derived from the corporation to be delivered, the remedy of the defendant is to apply to the court for a modification of the order. If he fails to pursue this remedy, and fails to obey the order, he may be committed for a contempt of court. Where a party’s refusal to make a delivery of property to a receiver in pursuance to an order of court is reported to the court, and he is present when the matter is considered, and makes no objection to the proceedings, and is fully heard by himself and counsel in the matter, and, after being ordered by the court to execute the delivery, refuses to-do so, the court will be justified in making an order for his commitment for contemnt, without any rule on him to show cause to the contrary. On an appeal from an order of the court committing a defendant to the county jail for refusing to obey a prior order requiring him to assign and hand over certain property to a receiver, no error in such prior order can be considered. The only question as to such prior order that can be considered is whether the court had jurisdiction to make it. It matters not, so far as the question of condemnation is concerned, whether such order was made on sufficient proof or not. The relator in that case claimed that some of the property did not belong to the corporation, and was not embraced in the order, and the court had no right to make an order requiring the same to be turned over. But it was held that the court had jurisdiction of the subject-matter and of the parties, and it had the ■power to make such order, and to commit the party for contempt for refusing to obey the same. In re Rosenberg, 90 Wis., 581, 63 N. W. Rep., 1065, and 64 N. W. Rep., 299, which was a contempt proceeding—a bill of discovery in which the party refused to answer—it is held that in a habeas corpus proceeding only jurisdictional questions will be inquired into. The court say: “The power to determine is jurisdictional. The correctness or justness of the determination of the question is not open for consideration on a habeas corpus proceeding.” It further holds “that the writ of habeas corpus will not be issued where, upon the hearing of the application therefor, it appears that the court must, in the end, remand the prisoner.” It will be observed, as before stated, that the relator did not claim the legal title in the notes or in the minute book, but merely an equity or a lien thereon to secure his debt. It seems that he, as an officer of the company, had transferred to himself, as an individual, through the direction of some of the stockholders, the notes and minute book in question. The action of the -court in ordering him to turn over said property to the receiver was by
no means an adjudication as to his lien. This, if it was a genuine lien* would be preserved to him in the hands of the receiver. The effect of the order was merely to place these articles, together with all the property of the corporation, in the hands of the receiver for administration, under the orders of the court. In our opinion, the court unquestionably had the power to do this, and did not exceed its jurisdiction in making said order. As to the fund: If it be not a trust fund in possession of relator, but a mere debt, it may be that it would not be competent for the court to have made the order.requiring this fund to be-turned over to the receiver. However, that question was submitted to-the court. The record shows that proof was heard upon this question, and the court below decided that this was a trust fund in the hands of the relator. If it be conceded, however, that it was a debt due by the-relator to the corporation, still the relator was in contempt of court as-to the remainder of the property—that is, the balance of the notes and the minute book—and the order was unquestionably valid as to these. And, the relator not having responded to the order of the court as to-these matters, we do not feel inclined to grant him any relief. It would be his duty to show before this court, in order to obtain relief by the. writ of habeas corpus, that he had done all within his power to comply with that portion of the order of the court which it unquestionably had. a right to make. Applicant also contends that the court exceeded its-power in assessing the punishment it did against him; claiming that the-punishment imposed would cause his imprisonment beyond the three-days authorized by statute. It will be noted that the court in exercising its punitive authority, only fined the relator $100. It imposed no-imprisonment as a penalty. On the relator responding to the order of the court, he would have been immediately enlarged, and need not go-to jail for a moment.
We
are cited to the case of Ex parte Kearby, 35 Tex. Crim. Rep., 531 and 634, but in ihat case we were speaking of the-power of the court to punish, ana stated that that power was circumscribed and limited by the statue.
We
were not then discussing the-quest-ion of the authority of the eoar to enforce its orders and decrees. If, under this statute, it was given to a party to refuse to obey the-orders of a court by merely submitting to a fire of $100 and three-days’ imprisonment, and then go free, still contumacious of the order of the court, the court would be rendered powerless to enforce its orders. It either follows that the court would be authorized, after having imposed a fine of $100 and three days’ imprisonment, on the payment of said fine and serving three days in jail, to bring the recalcitrant, party before the court, and then demand if he was willing to comply with its orders, and, on refusal so to do, to repeat, and continue to repeat, the fine and costs, by distinct orders; or, on the other hand, without imposing any imprisonment, on the refusal of the party to comply with the orders of the court to remand him to the custody of the officer until he did comply. There might be some question in treating a continued contempt as a new contempt. There certainly can be no punishment at.
all in ordering a party to do that which is within the power of the court to order, and which is within his ability to perform; and in such case, if the party is punished at all, it would appear to be self-inflicted. So far as the statute with reference to punishments for contempt is concerned, that is a mode of enforcing the rights of the court and of preserving its respect and dignity. It is a punishment. The other is not a punishment, but a specific mode of enforcing a particular duty. Conceding that the court has the power and authority to require the duty, the going to jail by the party is a self-imposed punishment, and not the imposition of a punishment by the court. The order in such a case is not punitive, but remedial. See, Phillips v. Welch, 11 Nev., 187. We hold that the court, in imposing the fine it did, did not exceed its pecuniary punishment, and that its order to the relator to turn over the property as commanded in the judgment was not the assessment of any imprisonment as a punishment. It was a command of the court, which the court had a right to make in the exercise of its duty; and although the court, in the alternative, ordered the relator into the custody of the sheriff until said order was complied with, yet the court gave the relator full opportunity of compliance. If he preferred to go to jail rather than comply, and that alternative was adopted by him, it necessarily appertains to the inherent power of the court to carry on the administration of justice to thus compel obedience to its orders. In our opinion, the court a quo did not exceed its power or authority in making the order it did in this case; and, the application for the writ of habeas corpus showing that the party is legally restrained and has no right to the writ, the motion to dismiss the same is sustained, and the relator is remanded to the custody of the sheriff of Harris County.
[Note.—Motion for rehearing filed on April 26th was overruled without a written opinion on May 12, 1897.—Reporter.]
Habeas Gorpus Refused and Application Dismissed.