Lodge v. . Gibbs , 159 N.C. 66 ( 1912 )

The facts found by his Honor and incorporated in his order are ample to support the conclusion he reached, and they are not reviewable, if supported by evidence. Young v. Rollins, 90 N.C. 125; In re Denton,105 N.C. 59; Green v. Green, 130 N.C. 578.

The respondents do not contest the correctness of this rule, but, admitting it, they say there is no evidence to support the findings (70) that they had notice of the restraining order before 10 August, 1911, on which day it is alleged it was violated, or that the respondent Emington was the agent of the respondent Gibbs, or that the sale to Emington was not made in good faith and for value.

We must, then, consider the evidence, not for the purpose of reviewing the findings of his Honor, but to see if there is any evidence to support them, and in doing so will be guided by the principle that it is not necessary to show legal service of the restraining order before 10 August, 1911, and that it is sufficient to prove circumstances from which it can be reasonably inferred that the respondents had knowledge of the fact that the order had been issued, in accordance with the rule stated in High on Injunctions, sec. 1421: "In considering the question of a defendant's liability for a breach of injunction, it is to be borne in mind that the injunction becomes operative from the time of the order being made, and not from the date of the writ itself, or from the time of its being drawn up. The mandate of the court being effectual upon all parties having notice thereof from the time it is given, to fix defendant's liability for a violation it is only necessary to show that he was actually appraised of the existence of the order at the time of committing the acts constituting the violation"; and again in section 1422: "Any means of information whereby notice of the order is actually brought to the knowledge of the parties enjoined would seem sufficient to meet the requirements of the rule above laid down. And the courts have uniformly held that it is not requisite that a defendant, against whom an injunction has been issued, should be officially apprised of its existence, or be served with process in the cause to render him liable in contempt in committing a breach of the injunction. If defendant is informed of the existence of the order, although not yet served with process, it becomes operative upon him, and he will not be allowed to disregard or violate it. It is enough to show that he has had actual notice of the existence of the writ, or of the order of the court that it should issue."

What, then, are the circumstances established by the evidence, if the plaintiff's affidavits are believed?

(1) The summons was issued on 7 August, 1911, and was served on the respondent Gibbs on 8 August, 1911, and on the night of (71) that day he (Gibbs) said, in the presence of J. H. Bruce, "that the plaintiffs thought they had fixed to stop him from running his merry-go-round, and that he intended to run his machine anyway," and that "he had a lawyer to do his fighting."

(2) The restraining order was signed on 7 August, 1911, and was filed in the office of the clerk of the Superior Court in Mocksville, about 9 o'clock of the morning of 9 August, 1911, in the presence of A. T. Grant, attorney for the respondents.

(3) The said attorney went from the clerk's office to his law office and in a few minutes the respondent Gibbs was in the law office in conference with his attorney; and the bill of sale from Gibbs to Emington was signed about 10 o'clock of the morning of the same day.

(4) The restraining order was executed by reading and delivering a copy thereof to A. T. Grant, Jr., Esq., as attorney for G. R. Gibbs and wife, 9 August, 1911; by reading to Mrs. G. R. Gibbs and offering to leave a copy with her, which she refused to receive, not being able to find her husband, he being gone, 9 August, 1911; by reading to T. Emington and leaving a copy of same with him, 9 August, 1911; by defendant Gibbs accepting service of order without reading, as he had read the copy served on his wife, Mrs. G. R. Gibbs, and by leaving a copy with him. This 10 August, 1911, 9 p. m.

(5) The merry-go-round was shipped to Mocksville in the name of the "Gibbs Amusement Company," and was shipped from Mocksville to Graham, on 12 August, 1911, in the same name; and when it was shipped to Graham ten tickets were bought for the Amusement Company, on one of which the respondent Gibbs traveled.

(6) The respondent Emington went to Mocksville as a member of the Amusement Company, and left as such.

(7) The respondent Gibbs continued to exercise control over the merry-go-round after he claims he made the sale to Emington, and on 11 August, 1911, boasted in the presence of Emington, and without (72) contradiction on his part, that some kind of legal papers had been executed against him for the purpose of prohibiting the operation of the merry-go-round on the previous day at Mocksville, but that he had very cleverly transferred the ownership of this property and had shown the Masons of Mocksville that they could not bluff him, and that when another year came round he would have a new outfit and would put it over them again.

There was much evidence on the part of the respondents which, if accepted by the court, would have exonerated them from all blame, but the circumstances we have enumerated are supported by evidence, and from them it was not unreasonable to infer and find that the respondents knew of the restraining order on 9 August, 1911, and that the pretended sale to Emington was not in good faith, and was for the purpose of evading and defeating the restraining order, and the court having so found, we cannot disturb the judgment.

Again, the respondents contend that having disavowed any intention to disregard the order of the court, having "purged themselves of the contempt," they must go free.

If this position can be maintained the force and effect of a restraining order will be measured by the conscience of the party against whom it issues, and if that is sufficiently elastic, he can always violate the order, and then escape liability by swearing he did not intend to show disrespect for the order of the court.

Such a conclusion would practically destroy the efficiency of this important branch of equity jurisdiction, and is not, we think, supported by reason or authority.

The question was considered in Baker v. Cordon, 86 N.C. 121, and in answer to the contention that the disavowal of the intent purges the contempt and exonerates the party, the Court there says: "This objection rests upon a misapplication of the rule laid down and acted on in the matter of Moore and others, 63 N.C. 397. That rule is confined to the `class of cases,' in the language of the Chief Justice, who delivers the opinion, `where the intention to injure constitutes the gravamen' of the offense. The violation of a judicial mandate stands upon different ground, and the only inquiry is whether its requirements have been willfully disregarded. If the act is intentional,(73) and violates the order, the penalty is incurred whether an indignity to the court, or contempt of its authority, was or was not the motive for doing it. A party is not at liberty, by a strained and narrow construction of the words and a disregard of the obvious and essential requirements of the order, to evade the responsibility which attaches to his conduct. In an honest desire to know the meaning and to conform to its directions, a mistaken interpretation of doubtful language would be a defense to the charge, but when its language is plain and the attempt is made to escape the force and defeat the manifest purpose of the order, by indirection, the penalty must be enforced or the court would be unable to perform many of its most important functions."

This case has been approved, in Weston v. Lumber Co., 158 N.C. 270, in which Justice Walker, speaking for the Court, says: "We have high authority for saying that a party enjoined must not do the prohibited thing, nor permit it to be done by his connivance, nor effect it by trick or evasion. He must do nothing, directly or indirectly, that will render the order ineffectual, either wholly or partially so. The order of the court must be obeyed implicitly, according to its spirit and in good faith. Rapalje on Contempt, sec. 40. The motive for violating the order is not considered in passing upon the question of contempt, and the respondent cannot purge himself by a disavowal of any wrong intent. It is the fact of his obedience that alone will be considered. Section 42; Baker v. Cordon,86 N.C. 116,41 Am. Rep., 448."

Upon a review of the whole record, we are of opinion there is no error.

Affirmed.

(74)