Delozier v. . Bird

Clark, J.: The record must show that notice of appeal was served, unless it affirmatively appear that the appeal was taken in open Court. Investment Co. v. Kelly, at this term. ' If this were not so, there would be a presumption that notice of appeal was given, when on the contrary it must appear from the record in order to constitute the appeal in this Court. Howell v. Jones, 109 N. C., 102, and cases there cited. But, here, the findings of fact and the judgment thereon, which constitute the case on appeal, state that the appeal was taken. This necessarily' shows that it was taken in time.. Atkinson v. Ry. Co., 113 N. C., 581. Neither do we find any force in the objection that no exceptions are filed. The appeal is itself a sufficient exception to the judgment which is rendered upon the findings of fact by the Court. Cumming v. Huffman, 113 N. C., 267. The motion of the appellee to dismiss upon the above grounds is denied. This is an - appeal from a judgment in contempt. *693 From the facts found by the Judge it appears that the plaintiff in the cause and the other two appellants, aiding him, entered in the night time upon the premises which by an order in the cause were in the possession and control of the court through its receiver, theretofore duly appointed in this action, and hold possession of the same by force and in defiance of the orders of the Court; that they have tom down and removed the dwelling house which was on the premises, and have committed other spoil and injury to the premises and property. The said Delozier and his two associates appeared in response to the notice served upon them, and replied that they acted under advice of counsel and disclaimed any intentional contempt or disobedience of1 the orders of the Court. Thereupon the Court adjudged them in contempt till they restore the house to said premises in the same condition as before their wrongful tearing down and removing the same, and that they turn over the premises to the defendant to be held by him subject to and under the orders of said receiver, and, if this order is not obeyed within ten days, said parties to be committed to the common jail of the county until they shall comply with the above order, with leave to move before any Judge at Chambers in that Judicial District, upon notice to the defendant, to have the attachment for contempt dissolved upon showing compliance with this order. From this order the respondents appealed, but they do not appear here and show any cause why it should be held invalid in any respect, and upon examination of the record we find none. The plaintiff was fixed with a knowledge of the order appointing a receiver to take charge of the property, the entrance in the night time to get possession was sig *694 nificant, and when ordered to restore the possession of the premises to the receivers, the respondents merely content themselves with saying they acted under advice of counsel and intended no intentional contempt of the Court, and they do not show any inability to return the house. The failure to obey the order of the Court to restore the possession.of the premises to the receiver is a direct contempt. State v. Davis, 49 N. C., 449; Code, Section 648 (4). This is also true as to the return of the. house unless evidence of inability to comply has been shown. Boyette v. Vaughan, 89 N. C., 27; Smith v. Smith, 92 N. C., 304; Pain v. Pain, 80 N. C., 322. The advice of counsel is .no protection to an intentional violation of the orders of the Court placing the property in possession of the receiver (Green v. Griffin, 95 N C. 50; Baker v. Cordon, 86 N. C., 116) and counsel in such cases advising violation of the orders of a Court may become guilty of contempt himself. The remedy for a supposed erroneous order of a Court is by an appeal and not by a forcible violation of it. While the Court could not punish the contempt already committed, by imprisonment of indefinite duration, it had the right to coerce obedience to its order of restitution by imprisoning the contumacious parties until they shall comply. Cromartie v. Commissioners, 85 N. C., 211; Thompson v. Onley, 96 N. C., 9. No error.