Williamson v. Pender.

Clabk, J. This is an appeal from a judgment in proceedings for contempt rendered upon the following state of facts, somewhat condensed from the findings made by the Judge. fThe defendants are W. R. Pender and his wife, Mary R. Pender. The summons was served on R. H. Pen-der, June 9, 1899, but not upon his wife. R. L. Leather-wood, Esq., a practicing attorney in said court, and whom the Court finds to be solvent, however, entered a general appearance for both defendants, having been employed by the husband, and waived notice of the motion for appointment of a receiver. At the June Term of the Swain Superior 'Court, 1899, Judge Slarbuck, after finding as facts the appearance of both defendants in the waiver by them of notice *487 of motion for a receiver, and that they were insolvent, appointed W. A. Gibson receiver of tbe real estate in controversy. Out of abundant caution, however, an alias summons was issued, August 17, 1899, and served upon tbe feme defendant, August 22, 1899. Said feme defendant also bad actual notice of tbe appointment of tbe receiver theretofore made, and on November 17, 1899, sbe caused notice to be served upon tbe receiver (Gibson) to sbow cause at Eall Term, 1899, Superior Court, wby be should not be removed from tbe receivership; but tbe motion was not brought by her to a hearing, and tbe defendants filed their answer in said action December 4, 1899. At Spring Term, 1900, both defendants being represented by counsel, Judge McNeill corrected and amended tbe former order appointing a receiver nunc pro kmc so as to read: “It is now, on motion of counsel for plaintiff, considered and ordered that W. A. Gibson be, and he is hereby, appointed receiver to talce charge of tbe land and rents and profits described in tbe plaintiffs’ complaint, and that be is authorized and empowered to enter upon the duties of such receiver upon entering into bond,” etc. After the said order by Judge McNeill, tbe receiver again demanded possession of said premises of tbe defendants (which had theretofore been refused), but tbe defendants again refused to surrender possession of said premises, or to pay rent, or to recognize or obey tbe order of tbe Court, though they were in possession of tbe land and receiving tbe rents ánd profits. Upon affidavit to that effect, filed before Judge AlleN, August 18, 1900, be issued notice to tbe defendants, which was duly served, to appear and show cause before him at Brevard, September 12, 1900, wby they should not be attached for contempt. Neither of tbe defendants appeared at tbe return day of tbe rule. Tbe male defendant sent an answer, which tbe Judge found insufficient, evasive, *488 and frivolous, and the feme defendant filed no answer at all. Thereupon the Judge, finding the above facts, issued an order to the sheriff to arrest them, to be brought before him, at Waynesville, September 20, 1900, to answer for the contempt of court. On that day the sheriff produced only the male defendant; whereupon the proceeding was continued for hearing at Webster,. October 3, 1900, and an alias order of arrest was issued for the feme defendant, and at that time and place, both defendants being present and heard, the Judge found the above facts, and, further, that the annual rental value of the land was at least $100, and that the defendants had been in continuous occupation of said premises, living in the dwelling-house and using the other buildings, since the appointment of said receiver, and in receipt of all the rents and profits, except 317j- bushels of com paid by ■one of the tenants who had rented from the feme defendant for the year 1899. Upon these findings, the feme defendant was adjudged guilty of contempt of court, and fined $50, and taxed with the costs of the contempt proceedings. The Court further ordered the defendants to surrender immediate possession of the premises and the crops to the receiver, and enjoined them, their aiders and abettors, from interfering with the possession of the premises. The Court committed the feme defendant to jail (the male defendant having dis-ci aimed any right in, or control over, the realty, which was the-property of the wife) till payment of said '$50 fine and costs in contempt, and till she should surrender the premises and comply with the order of the Court; with a proviso, however, that if she should forthwith pay to the receiver $100, or secure the same to be paid within 90 days, she might be allowed to remain in possession as tenant of the receiver, and take the rents for this year. The question as to- liability for rents and profits for the year 1899 was reserved till the next term of court. *489 The facts are thus recited at some length, though not altogether as full as set out in the record and in the findings of the Judge. It is almost incredible that this Court should be asked to hold that the appellants were not guilty. They certainly have been very badly advised by some one. If there was any error or irregularity in the appointment ■of a receiver, that could only be corrected by an appeal therefrom. In the meantime, such order would be valid and binding, and should be obeyed, unless suspended by the bond given on appeal. An erroneous or irregular judgment can not be tested by disobeying it. It is valid till reversed or set .aside. The only possible defense for disobedience of the order appointing a receiver, it not being appealed from, would be that the order is void for lack of service of process upon the feme defendant; but she has in the amplest maimer been made a party to the proceedings, has had full notice of the orders of the Court, and has contemptuously disregarded them. The judgment of imprisonment till the order was complied with is valid. Delozier v. Bird, 123 N. C., 689. Affirmed.