McKinney v. Frankfort & State Line Railroad

Coffey, J. — This case may properly be said to constitute one branch of the case of Barner v. Bayless, 134 Ind. 600. [96] In that case the circuit court entered an order to the effect that the board of commissioners of Clinton county and the auditor and treasurer of that county should proceed to collect the railroad tax involved in that suit. Neither the board of commissioners, the county auditor nor the county treasurer of Clinton county was a party to the suit, nor were all the taxpayers of the township, voting the tax, parties to it. Upon a return of the case above mentioned to the White Circuit Court the appellees undertook to compel the board of commissioners, the county auditor, and the treasurer to proceed with the collection of the tax, assuming that the order made against them to that effect was valid. Upon their refusal to do so, they were attached as for being in contempt of the court, and were ordered confined in the jail of White county until they should execute the orders made in the case of Barner v. Bayless, supra. Prom this action of the circuit court they appeal to this court and assign error. That the order of the White Circuit Court in the case of Barner v. Bayless, supra, so far as it relates to, the board of commissioners, the auditor and treasurer of Clinton county, is a mere nullity, we think is too plain to admit of a moment’s controversy. They were not parties to the suit and had no notice of its pendency. The court was wholly without jurisdiction over either of them. It is certainly not necessary to cite authority to prove that the judgment of a court against one over whom it has no jurisdiction is void. As these orders were absolutely void, we do not think they could be enforced by attachment or in any other manner. Of course, all who were parties to the case of Barner v. Bayless, supra, are bound by the judgment therein rendered, but the orders and judgments of the [97] court against those who were not parties are binding upon no one. In holding that these orders could be enforced against the board of commissioners, the county auditor, and the county treasurer of Clinton county, we think the White Circuit Court erred. The appellees in this case have also filed a motion to dismiss the appeal on the ground that no appeal lies in cases of this kind and contend that for this reason we have no jurisdiction of the cause. The contention is that this is a proceeding for the enforcement of a civil right, and is expressly excepted from the provisions of our statute upon the subject of contempt, which provides for an appeal, and they claim that because not included in that statute no appeal is provided for. It is undoubtedly true that the power to punish for contempt is generally exercised for two purposes, viz.: First. To vindicate the dignity of the court for disrespect shown to it or its orders, and Second. To compel the performance of some order or decree of the court which it is in the power of the party to perform and which he refuses to obey. 3 Am. & Eng. Encyc. of Law, 799. It is also probably true that our statute upon the subject of contempt relates to the first class only, but we do not think it necessarily follows, that because the case •does not fall within this statute no appeal lies. It is true that in the absence of a statute no appeal lies from a judgment finding one guilty of a contempt, but this is, perhaps, true of all cases. It is unnecessary to inquire whether the appellant in this case could maintain this appeal if he had been a party to the case of Burner v. Bayless, supra, and a valid judgment or order [98] had been rendered against him, for as we have seen he was not such a party, and no valid order could be made against him. This is the first time he has had an opportunity to be heard. Had he been a party to that suit, no doubt he could have appealed from the order therein made. Filed Sept. 25, 1894. In the case of Whittem v. State, 36 Ind. 196, it was held that a defendant belonging to the class first above named had the right to appeal to this court under the provisions of section 148 of the criminal code, 2 G. & H., p. 425. The provisions of that statute, with some modifications not necessary to mention, is still in force. Section 644, R. S. 1894, provides that appeals may be taken from the circuit courts and the superior courts to the Supreme Court, by either party, from all final judgments, except in actions originating before a justice of the peace or mayor of a city, where the amount in controversy, exclusive of interest and costs, does not exceed fifty dollars. The judgment from which this appeal is prosecuted is certainly a final judgment, and it does not fall within the exception. So whether this is to be regarded as a proceeding for contempt, falling within the first class above referred to, or as a proceeding to enforce a civil remedy, we think an appeal lies. Having reached this conclusion, the motion to dismiss the appeal should be overruled. The judgment of the White Circuit Court is reversed, with directions to overrule the demurrer of the appellees to the appellant’s plea in abatement and for further proceedings not inconsistent with this opinion.