In re the Contempt of West

BALEY, Judge. Proceedings for contempt are governed by Chapter 5 of the General Statutes of North Carolina and are classified as either “direct” or “indirect,” depending upon whether they are committed within or beyond the presence of the court. Galyon v. Stutts, 241 N.C. 120, 84 S.E. 2d 822 (1954); In Re Edison, 15 N.C. App. 354, 190 S.E. 2d 235 (1972); see Snepp, The Law of Contempt in North Carolina, 7 Wake Forest L. Rev. 1. To constitute direct contempt, the conduct does not have to occur in the courtroom, but “[a] direct contempt consists of words spoken or acts committed in the actual or constructive presence of the Court while it is in session ... or during recess . . . which tends to subvert or prevent justice. An indirect contempt is one committed outside the presence of the court, usually at a distance from it, which tends to degrade the court or interrupt, prevent, or impede the administration of justice.” Galyon v. Stutts, supra at 123, 84 S.E. 2d at 824-25. When the contempt is direct, the court may take summary action to punish the offender, but the particulars of the offense must be specified in the record. G.S. 5-5. When the contempt is indirect, the proper procedure is by order to show cause. G.S. 5-7; Galyon v. Stutts, supra. When the contempt is direct, there is no right of appeal, G.S. 5-2, and any review is [305] secured by application to another court for a writ of habeas corpus and petition for certiorari if no relief is there obtained. In re Palmer, 265 N.C. 485, 144 S.E. 2d 413 (1965). Where contempt is indirect, there is right of appeal. G.S. 5-2; Cromartie v. Commissioners, 85 N.C. 211 (1881). Presumably the trial court here considered contemner in direct contempt of its authority and acted summarily; yet an appeal was granted and appeal entries made, which is the procedure for an indirect contempt. Regardless of how the matter has been considered, we take jurisdiction on appeal, and direct that the judgment be reversed. On this record, we are unable to determine any proper basis for the action of the court. There is no finding that Mr. West actually represented the criminal defendant whose case was called for trial, but only that the defendant “announced” that Mr. West represented him. There was no finding that Mr. West was in Kannapolis investigating a murder charge, but only that a member of his firm “announced” this supposed fact. There is no basis for any finding that Mr. West was delivered a copy of the court docket or that he knew that a case in which he appeared was scheduled for trial. In fact, the record shows affirmatively that contemner was never in the actual presence of the court either before, during, or after the proceedings. There is no showing that contemner was under any process or order of the court which required his presence before it, and certainly there could be no contempt for failure to be there. Since contemner was never before the court, he cannot be held for contempt for not securing permission to leave. There is nothing in the record which supports any conclusion that the court ever acquired jurisdiction over the person of the contemner in any way sanctioned by law. Without jurisdiction, any judgment imposed is void ab initio. Marketing Systems v. Realty Co., 277 N.C. 230, 176 S.E. 2d 775 (1970). The order of the trial court directing that Ted G. West be held in custody for contempt of court is reversed. Reversed. Chief Judge Brock and Judge Parker concur.