Greene County v. Rose

38 Mo. 390

• Court: Supreme Court of Missouri
• Decided: July 15, 1866
• Status: Published

Opinion

Wagner, Judge,

delivered the opinion of the court.

The Probate and Common Pleas Court of Greene county issued a notice to Kindred Rose, wlio was curator of the estate of Richard F. Rose, to appear and make settlement: he failed to comply, and the court imposed on him a fíne of one hundred dollars for contempt, and issued execution therefor. Afterwards he appeared and moved the court to set aside the judgment and stay the execution, which motion was by the court overruled, and he sued out his writ of error. The court clearly exceeded its powers, and its judgment must be reversed.

The statute in regard to guardians and curators provides that if they refuse or neglect to make settlements a.s réquired by law, they shall be attached and imprisoned until they make such settlements, the court first making a rule on them, respectively, to show cause why they should not be proceeded against — R. C. 1855, p. 828, § 31. This statute points out a sufficient remedy, and it would seem the only remedy, against guardians and curators for a neglect to conform to the law, and promptly make their settlements. But, admitting that the party was in contempt, still the court went beyond its jurisdiction in assessing its fine. A court of record has power to punish, as for a criminal contempt, éither by fine or imprisonment, persons who are guilty of disorderly, contemptuous, or insolent behavior, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings or to impair the respect due its authority ; or who commit any breach of the peace, or cause noise or other disturbance directly tending to interrupt its proceedings; or who are guilty of any wilful disobedience of any process or order lawfully issued or made by it — R. 0. 1855, p. 542, § 65. When the contempt is committed in the immediate view and presence of the court, it may be punished summarily ; in all other cases, the party charged must be notified of the accusation, and have a reasonable time to make his defence — id. 67.

The contempt here alleged was not committed in the immediate view and presence of the court, and the court possessed no power or authority to inflict a fine without notifying the party and giving him a reasonable time to make his defence.

Reversed and remanded.

Judge Holmes concurs ; Judge Lovelace absent.