State ex rel. Simard v. Fourth Judicial District Court

De Witt, J. The respondent contends that this contempt proceeding is not reviewable in this court on certiorari, but that contention seems to be disposed of by the following eases: In re McCutcheon, 10 Mont. 115; In re Shannon, 11 Mont. 67; In re MacKnight, 11 Mont. 126; 28 Am. St. Rep. 451. We proceed to the merits of the application. The statement of case above recites what the testimony before the court tended to prove, and, indeed, is conceded by the relator to be correct, except in one particular, which is not of great importance. We therefore review the situation, as recited, as that which was before the district court. Simard [350] personally and physically desisted from interference with the hay after service upon him of the writ of injunction, but did he not obtain to be done that which he did not personally do? The district court proceeded upon the ground that he did. The injunction was against Simard, his agents, servants, and employees, and all others acting in aid or assistance of him. It appears that the relation of Simard to Asselin and La Casse was very close. Simard knew that Han ratty and Tillman claimed title to the ground by purchase from the railroad company. He recognized that claim when he contracted to cut the hay for them. After agreeing to cut the hay for them he purported to sell the grass to Asseliu and La Casse, and agreed to cut it for them. Then afterwards, at the service of the writ, he said that it was his own, and he was going to have it. If his position was only that of a servant of Asselin and La Casse, he contradicted his claim to that relation when, at the time of the service of the writ, he claimed the hay himself. If he were only a servant, he had no interest in the hay or its disposition after he had informed his alleged master of the service of the writ. But we find him going to Missoula with Asselin to consult lawyers, whom he describes as “our lawyers.” He says to Asselin: “From what our lawyers say, you had better go ahead and cut the hay.” So we find Simard recognizing the Hanratty and Tillman title on one day, and agreeing to cut the hay for them. Very soon afterwards he is selling the hay to Asselin and La Casse, and agreeing to cut it for them. Next we find him claiming the hay himself. Then, in company with Asselin, he is consulting “their lawyers,” and he suggests to Asselin that he, Asselin, had better go ahead and cut the hay. We are of opinion that the district court exercised a sound discretion if it concluded that Simard, under the showing made, had a very lively personal interest in the hay. All the circumstances together indicate this. Although the claim is made that Simard was only the servant of Asselin and La Casse, yet we believe that the district court was justified in its conclusion that Simard disobeyed the injunction by advising or procuring Asselin and La Casse to do the prohibited act. It is said by the New York court of appeals “that injunction [351] orders must be fairly aud honestly obeyed, and not defeated by subterfuges aud tricks on the part of those bound to obey them; that they might be violated by aiding, countenancing, abetting others in violation thereof, as well as doing it directly; and that courts would not look with indulgence upon schemes, however skillfully devised, designed to thwart its orders.” (People v. Pendleton, 64 N. Y. 622.) We are therefore of opinion that the writ of certiorari should be denied, and it is so ordered. Harwood, J., concurs. Pemberton, C. J., did not sit in the hearing of this case.