State ex rel. Hero

Tho opinion of tho Court was delivered by Fenner, J. Tho respondent judge, in his capacity of Judge of Division B of the Civil District Court for the Parish of Orleans, in a certain cause, entitled Succession of Kate Townsend, pending in said court, issued an order or writ of judicial sequestration, commanding the sheriff to sequester and take into his possession property belonging to said succession and, specially, certain movables stated therein to he in tho possession of the relator, Andrew Hero. Tho sheriff, in execution of said order, demanded from Hero the delivery of said movables, wlio i'ailed to make such delivery, denying that lie had possession thereof. Thereupon the judge issued a rule upon Hero to appear at a fixed day and show cause why he should not bo punished for contempt of tho order and authority of tho court. Said rulo was duly served. Relator made return thereto, denying that he had possession of tho property, disclaiming any contempt or disobedience of the order of the court, and averring that he had delivered to the sheriff all property belonging to the succession, which was in his possession at the time when tho writ of sequestration was issued or when demand thereunder was made by the sheriff. After trial of the rule, the judge made the same absolute, and issued his commitment in tho following words: “ Whereas, Andrew Hero, Jr., has been found guilty of contempt of the authority of this court after due trial on rule, in this, that the said, Andrew Hero failed and refused on the 28th of January, 1884, and still refuses to deliver to the Civil Sheriff of the parish of Orleans, notwithstanding due demand made on him by the said Civil Sheriff under a writ of judicial sequestration duly issued in tlie matter of tho Succession of Kate Townsend, [353] commanding the Civil Sheriff to seize and to take into his possession all the effects, movables and immovables of the succession of Kate Townsend, the diamonds and other jewelry of the succession, notwithstanding demand duly made on said Hero and notwithstanding that the said Hero admitted in open court on the 26th of January, 1884, that he had the said diamonds and jewelry in his control and keeping, which diamonds and jewelry the court now finds and believes to be still within, the control of the said Hero; and. whereas, the said Andrew Hero has been found guilty of contempt of the authority of this honorable court after due trial, in obstructing the Civil Sheriff in the execution of said writ of judicial sequestration in failing to deliver the •said diamonds and other jewelry to the said sheriff, notwithstanding the said Hero had them in his hands or under his control and in failing to states to said sheriff the place of the present concealment of the said diamonds and jewelry, now, therefore, you, the said Civil Sheriff, are hereby commanded, in the name of the State of Louisiana and of the Civil District Court, to convey the body of the said Andrew Hero, Jr. to the parish prison and there deliver him to the Criminal Sheriff and the keeper of the prison, who is hereby authorized and commanded to imprison the said Hero for the term and space of ten days, or until he shall deliver to the said Civil Sheriff the said diamonds and jewelry, (describing the same) and this shall be the warrant of the Civil Sheriff as well as the keeper of the parish prison.” Relator herein, alleging sundry nullities and irregularities, applies for writs of certiorari and habeas corpus and prays to be set at liberty, and that the order committing him to prison for contempt be declared absolutely null and void. So far as the relief under the writ of habeas corpus is concerned, it must be denied for lack of jurisdiction, upon the grounds fully’' set forth in the case of State ex rel. Debuys vs. Civil Sheriff, 32 A. 1225. On the application for the certiorari, the argument at bar took a wide and unwarrantable range. Our investigation must be confined to the questions of the regularity and validity of proceedings as disclosed on the face of the record. State ex rel. Wintz vs. Judge, 32 A. 1222. The proceedings present no defect of regularity. The rule to show cause why he should not be punished for the alleged contempt was regularly served and tried and relator was allowed to produce evidence and argument in his defense. The only question left is whether it appears from the face of the proceedings that the order committing relator to prison for contempt [354] was one which the judge was without power or authority to make, and, therefore, null and void, in which case he is entitled to relief by cer-tiorari. State ex rel. Livesey vs. Judge, 35 A. 741. The precise act for which relator was condemned for contempt, appears not only on the face of the rale, but of the order of commitment itself. If the order, with disobedience of which the relator is charged, was one in its nature not enforceable by process for contempt, th.en the order committing him for contempt is unauthorized and null and void. What was the order ¶ As already stated, it was an order commanding the sheriff to sequester certain property belonging to the succession and stated to be in the possession of relator. Conceding that after notification and demand by the sheriff, this had all the effect of an order directed to relator commanding him to deliver, would his refusal subject him to punishment for contempt 1 It is not pretended that relator held the property under any mandate or authority derived from the court, or was, in any peculiar manner, subject to its orders. lie was a third person so far as the succession is concerned. It appears clear that such an order could not have a greater effect than a writ of possession issued in execution of a final judgment decreeing the delivery of a specific object: yet, even in such a case, the party condemned could not be qiunished for contempt for refusal to deliver. On the contrary, the Code of Practice specifically provides a different remedy, viz: in an action for damages, or by distraint of the other property of the debtor. C. P. 035-6, et seq. It thus appears that our law does not authorize the enforcement of final judgments, much less of ex pevrte orders, directing the delivery of property, by process for contempt. We lay this down as a general proposition. There may be exceptions, but certainly the case at bar is not one. The relator does not confess possession and defy the authority of the court, even if that would justify such a proceeding, on which we express no opinion. On the contrary, he denies under oath that he had possession when delivery was demanded, or even when the order of the court was issued. If this be true, it may be impossible for him to comply with the order of the court, and in that event, under the commitment as it stands, his imprisonment would be for life. It is true the court finds the fact against him, but this is not sufficient to make the case an exception to the rule above announced. The [355] effect of the proceeding here is to impose imprisonment as a means of enforcing obligations, or as a penalty for failing to fulfil obligations. This our law does not, save in exceptional cases, permit. Our law is quite as exact in providing for the “ execution of judgments requiring something to be given or something to be done,” as for the “execution of judgments directing the payment of a sum of money.” These form the subjects of separate sections of the Code. There seems no more authority for issuing process of contempt in aid of one than of the other execution. It is, therefore, ordered, adjudged and decreed that the order committing relator to prison for contempt be declared null and void and he set aside.