[479]*479HOLMAN, J.
Defendant is a member of the Oregon State Bar and was convicted in the District Conrt of the United States for the District of Oregon of “* * * wilfully and knowingly attempting to evade and defeat a large part of income tax due and owing by defendant * * The records of this conrt show that the Oregon State Bar filed with it a certified copy of the judgment of conviction; that, pursuant to Rule I of the rules of this court for admission of attorneys, this court summarily suspended defendant from the practice of law in Oregon; and that the Oregon State Bar was notified by letter of the order of suspension and a copy of the letter was mailed to the defendant.
Thereafter, the Oregon State Bar, as relator, instigated an original contempt proceeding in this court against defendant claiming he had violated the court’s order of suspension by continuing to practice law and holding himself out to the public and members of the bar as eligible to practice law. As a basis for this claim and its application for an order to show cause why he should not be punished for contempt, the relator filed with the court affidavits of different individuals setting forth certain alleged actions of the defendant which relator contends constitute the practice of law. Subsequent to the issuance of the order to show cause and after appearance by defendant, this court appointed a referee for the purpose of holding a hearing and taking testimony for this court and making findings.
The referee held a hearing and certified to the court the transcript of the testimony and his findings. The defendant has raised numerous objections to the findings and to the propriety of the proceeding, among which is the contention that the affidavits filed by [480]*480the relator are insufficient upon which to base a proceeding of contempt. The affidavits allege neither the entry of the order of suspension by this court nor knowledge by the defendant concerning issuance and entry of such order.
Contempts are of two kinds, direct (ORS 33.030) which is in the presence of the court, and indirect (ORS 33.040) which is out of the presence of the court. This proceeding is an attempt to assert an indirect contempt.
Contempts may be civil or criminal. In a civil contempt the eontemnor violates a decree or order of the court made for the benefit of an adverse party litigant. In a criminal contempt a court’s process is violated or disobeyed and disrespect of the court is manifested. State ex rel v. Downing, 40 Or 309, 322, 58 P 863 (1901); State ex rel v. Sieber, 49 Or 1, 8, 88 P 313 (1907). The present proceeding is one of criminal contempt.
The averments of an affidavit are essential to invoking the jurisdiction of the court. In State ex rel v. Conn, 37 Or 596, 598-599, 62 P 289 (1900), this court, in holding insufficient an affidavit reciting information and belief rather than facts, stated as follows:
“Our statute relating to the punishment of con-tempts provides that, when not committed in the immediate view and presence of the court, ‘before any proceedings can be taken therein the facts constituting the contempt must be shown by an affidavit presented to the court or judicial officer:’ Hill’s Ann. Laws, § 653 [OES 33.040]. This affidavit is essential to the jurisdiction of the court in all proceedings for constructive contempts (State v. Kaiser, 20 Or 50, 23 Pac. 964, 8 L.R.A. 584); and it must state facts which, if established, will constitute the offense. If it is insufficient in [481]*481this respect, there is nothing to set the power of the court in motion, and it is without jurisdiction to proceed: [citations]. Now, a proceeding for contempt for violating an injunction is in its nature criminal [citations] and therefore the statute must be strictly pursued (4 Enc. Pl. & Prac. 770). * * * The statute * * * contemplates that the facts constituting the contempt shall be stated in a positive manner by some one conversant therewith. Indeed, a proper regard for the liberty of the citizen forbids any proceeding by which he may be deprived of his liberty without the information furnished by such an affidavit, and so the courts hold.”
State ex rel v. Sieber, supra, at page 4, reiterates the same rule:
“* * * As a violation of an injunction is a criminal contempt, the proceedings to punish a party accused thereof must be strictly pursued (4 Enc. PI. & Pr. 770), and, in all cases of constructive contempt, the initiatory affidavit must state facts sufficient to constitute a prima facie case: 4 Enc. Pl. & Pr. § 780.”
An affidavit must allege the defendant was served with the order or that he had knowledge of it. State ex rel v. Downing, supra; Trullinger v. Howe, 58 Or 73, 113 P 4 (1911); State v. Stillwell, 80 Or 610, 157 P 970 (1916); State ex rel v. Sieber, supra at page 9. In the case of Trullinger v. Howe, supra, at page 79, the court stated as follows:
“Before a party can be brought into contempt for not complying with an order or decree of court, service thereof must be made upon him, and a demand duly made that he comply therewith, unless it appear that he has personal knowledge or notice of such order or decree, and this must be shown by the affidavit upon which the proceedings are based: State ex rel v. Downing, 40 Or 314, [482]*482325 (58 Pac. 863: 66 Pac. 917), and cases there cited.”
Mr. Justice Harris, in a specially concurring opinion in State v. Stillwell, supra, at page 616, said:
“The affidavit must show either that a copy of the order has been served, or that the party has actual knowledge of the making of the order. * *
While the above cases are ones of civil contempt, with the exception of State ex rel v. Sieber, surely knowledge of the order prohibiting the thing claimed to have been done is equally, if not more, important in cases of criminal contempt.
Relative to the necessity of alleging the court’s order in the affidavit and whether the court might take judicial notice of its own records as a substitute therefor, the court said in State ex rel v. Sieber, supra at page 5, as follows:
“* * * The counsel for the relators, in support of the principle for which they contend, cite Ex parte Ah Men, 77 Cal. 198 (19 Pac. 380: 11 Am.St.Rep. 263), where it was held to be unnecessary to set forth, in an affidavit charging the violation of an injunction, the provisions of the writ that had been transgressed, because the court would take judicial notice of its own orders. The conclusion in that case was based on the fact that the practice prevailing in California permits the prosecution of a contempt to be made in the cause out of which the restraining order arose, and not in a separate proceeding with a title of its own. Such rule, however, does not obtain in this jurisdiction where contempt proceedings must be prosecuted in the name of the state or in its name on the relation of a private party: B. & C. Comp. §667 [ORS 33.060].
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[479]*479HOLMAN, J.
Defendant is a member of the Oregon State Bar and was convicted in the District Conrt of the United States for the District of Oregon of “* * * wilfully and knowingly attempting to evade and defeat a large part of income tax due and owing by defendant * * The records of this conrt show that the Oregon State Bar filed with it a certified copy of the judgment of conviction; that, pursuant to Rule I of the rules of this court for admission of attorneys, this court summarily suspended defendant from the practice of law in Oregon; and that the Oregon State Bar was notified by letter of the order of suspension and a copy of the letter was mailed to the defendant.
Thereafter, the Oregon State Bar, as relator, instigated an original contempt proceeding in this court against defendant claiming he had violated the court’s order of suspension by continuing to practice law and holding himself out to the public and members of the bar as eligible to practice law. As a basis for this claim and its application for an order to show cause why he should not be punished for contempt, the relator filed with the court affidavits of different individuals setting forth certain alleged actions of the defendant which relator contends constitute the practice of law. Subsequent to the issuance of the order to show cause and after appearance by defendant, this court appointed a referee for the purpose of holding a hearing and taking testimony for this court and making findings.
The referee held a hearing and certified to the court the transcript of the testimony and his findings. The defendant has raised numerous objections to the findings and to the propriety of the proceeding, among which is the contention that the affidavits filed by [480]*480the relator are insufficient upon which to base a proceeding of contempt. The affidavits allege neither the entry of the order of suspension by this court nor knowledge by the defendant concerning issuance and entry of such order.
Contempts are of two kinds, direct (ORS 33.030) which is in the presence of the court, and indirect (ORS 33.040) which is out of the presence of the court. This proceeding is an attempt to assert an indirect contempt.
Contempts may be civil or criminal. In a civil contempt the eontemnor violates a decree or order of the court made for the benefit of an adverse party litigant. In a criminal contempt a court’s process is violated or disobeyed and disrespect of the court is manifested. State ex rel v. Downing, 40 Or 309, 322, 58 P 863 (1901); State ex rel v. Sieber, 49 Or 1, 8, 88 P 313 (1907). The present proceeding is one of criminal contempt.
The averments of an affidavit are essential to invoking the jurisdiction of the court. In State ex rel v. Conn, 37 Or 596, 598-599, 62 P 289 (1900), this court, in holding insufficient an affidavit reciting information and belief rather than facts, stated as follows:
“Our statute relating to the punishment of con-tempts provides that, when not committed in the immediate view and presence of the court, ‘before any proceedings can be taken therein the facts constituting the contempt must be shown by an affidavit presented to the court or judicial officer:’ Hill’s Ann. Laws, § 653 [OES 33.040]. This affidavit is essential to the jurisdiction of the court in all proceedings for constructive contempts (State v. Kaiser, 20 Or 50, 23 Pac. 964, 8 L.R.A. 584); and it must state facts which, if established, will constitute the offense. If it is insufficient in [481]*481this respect, there is nothing to set the power of the court in motion, and it is without jurisdiction to proceed: [citations]. Now, a proceeding for contempt for violating an injunction is in its nature criminal [citations] and therefore the statute must be strictly pursued (4 Enc. Pl. & Prac. 770). * * * The statute * * * contemplates that the facts constituting the contempt shall be stated in a positive manner by some one conversant therewith. Indeed, a proper regard for the liberty of the citizen forbids any proceeding by which he may be deprived of his liberty without the information furnished by such an affidavit, and so the courts hold.”
State ex rel v. Sieber, supra, at page 4, reiterates the same rule:
“* * * As a violation of an injunction is a criminal contempt, the proceedings to punish a party accused thereof must be strictly pursued (4 Enc. PI. & Pr. 770), and, in all cases of constructive contempt, the initiatory affidavit must state facts sufficient to constitute a prima facie case: 4 Enc. Pl. & Pr. § 780.”
An affidavit must allege the defendant was served with the order or that he had knowledge of it. State ex rel v. Downing, supra; Trullinger v. Howe, 58 Or 73, 113 P 4 (1911); State v. Stillwell, 80 Or 610, 157 P 970 (1916); State ex rel v. Sieber, supra at page 9. In the case of Trullinger v. Howe, supra, at page 79, the court stated as follows:
“Before a party can be brought into contempt for not complying with an order or decree of court, service thereof must be made upon him, and a demand duly made that he comply therewith, unless it appear that he has personal knowledge or notice of such order or decree, and this must be shown by the affidavit upon which the proceedings are based: State ex rel v. Downing, 40 Or 314, [482]*482325 (58 Pac. 863: 66 Pac. 917), and cases there cited.”
Mr. Justice Harris, in a specially concurring opinion in State v. Stillwell, supra, at page 616, said:
“The affidavit must show either that a copy of the order has been served, or that the party has actual knowledge of the making of the order. * *
While the above cases are ones of civil contempt, with the exception of State ex rel v. Sieber, surely knowledge of the order prohibiting the thing claimed to have been done is equally, if not more, important in cases of criminal contempt.
Relative to the necessity of alleging the court’s order in the affidavit and whether the court might take judicial notice of its own records as a substitute therefor, the court said in State ex rel v. Sieber, supra at page 5, as follows:
“* * * The counsel for the relators, in support of the principle for which they contend, cite Ex parte Ah Men, 77 Cal. 198 (19 Pac. 380: 11 Am.St.Rep. 263), where it was held to be unnecessary to set forth, in an affidavit charging the violation of an injunction, the provisions of the writ that had been transgressed, because the court would take judicial notice of its own orders. The conclusion in that case was based on the fact that the practice prevailing in California permits the prosecution of a contempt to be made in the cause out of which the restraining order arose, and not in a separate proceeding with a title of its own. Such rule, however, does not obtain in this jurisdiction where contempt proceedings must be prosecuted in the name of the state or in its name on the relation of a private party: B. & C. Comp. §667 [ORS 33.060]. * * * That a court will take judicial notice of its orders made in certain cases [483]*483must be admitted, but the notice referred to is a rule of evidence only, whereby proof of the existence of such orders, by the production of the originals or certified copies thereof, may be dispensed with. * * *”
There are subsequent cases which hold that no service of the order or, in the alternative, knowledge need be alleged in the affidavit. State ex rel Hambrecht v. Hambrecht, 128 Or 305, 274 P 507 (1929); State v. LaFollett, 132 Or 257, 284 P 283 (1930); State ex rel Grover v. Grover, 158 Or 635, 77 P2d 430 (1938). However, these cases rest their decisions on the amendment to ORS 33.040 which was added by Chapter 165, Oregon Laws 1923:
“* * * The affidavit shall set forth the facts constituting the contempt, but need not contain recitals of matters already appearing in the record of any action, suit or proceeding in which the person charged with contempt has been personally served with process. * * *” (Italics ours)
It is apparent that the amendment to the statute has no application to the present situation. At the time the affidavits were filed the defendant had not been served with process. Therefore, the fact that this court’s records show both the order of suspension and the mailing to defendant of a copy of the letter to the State Bar notifying it of defendant’s suspension is of no avail to relator.
As they now stand the affidavits are not sufficient to make out a prima facie case of contempt against defendant because none of them contained any allegation of the issuance of the order of suspension or of knowledge by defendant of its issuance. The records of this court, of which judicial notice can be taken, furnish evidence of both the issuance of the order and defendant’s knowledge. Eather than dismissing the [484]*484proceeding on a technicality and not making a determination on the merits, this court believes it is desirable to give the relator an opportunity to file an amended or additional affidavit if it so desires. Authority for allowing the relator to furnish additional information by way of affidavit at the time of trial is furnished by State ex rel v. Sieber, supra, at page 6, where this court said:
“* * * if on trial it should be ascertained that the affidavit initiating a contempt proceeding was not sufficiently specific in its charge, it may, with the court’s consent, be amended by reverification * * *."
This court is presently in the act of trying the matter on the record as an original proceeding. The court’s action is analogous to the allowance of an amendment of the pleadings on trial.
The relator is allowed 15 days within which to file an amended or additional affidavit and the defendant is allowed a like time in which to present to this court by way of affidavit any evidence contravening any new matters stated in any amended or additional affidavit the relator may file.