Cuttino v. Lenoir , 271 S.C. 447 ( 1978 )

Lewis, Chief Justice.

An ex parte order was issued on August 8, 1977 and served on appellant on August 12, 1977, directing her to “immediately deliver” to proper authorities any official documents pertaining to the investigation into the murder of Margaret “Peg” Cuttino. This order contained the following provision:

ORDERED that this order shall be complied with immediately but should any individual consider himself or herself aggrieved by this order, then he or she shall apply to me at 11:00 a. m. o’clock on the 29th day of Aug. 1977, at Bishopville, S. C. at which time a date shall be set by me for such persons to show cause, if cause there be, why this order shall not remain in full force and effect. Otherwise, this order shall remain permanent and in full force and effect.

Appellant did not comply with the order of August 8 and a subsequent order was issued on August 16 requiring appellant to show cause on August 29, 1977 why she should not be held in contempt of court. She appeared on August 29, in response to the rule, without counsel, and challenged the validity of the ex parte order of August 8, which directed her to “immediately deliver” the documents in question. The challenge to the August 8 order was upon the ground that the court was without jurisdiction to issue it because appellant had not been given her day in court, or opportunity to be heard.

It is undisputed that the order of August 8 was issued ex parte, without notice to appellant or the opportunity to be heard. The order amounted to an ex parte personal judgment against appellant and was, therefore, a nullity.

It is contended, however, that the above quoted provision of the order of August'8 and the contempt hearing held pursuant to the order of August 12 “met the minimum requirements of due process,” since the trial judge granted appellant “a hearing prior to issuing a final order.” The record does not support this conclusion.

The only hearing granted appellant was to determine whether she was guilty of contempt for violating the order of August 8. In fact, the quoted provisions of the order of August 8 did not grant the right of a hearing to determine whether the direction to “immediately deliver” the documents was proper. The direction to “immediately deliver” had to be complied within any event; only the after the fac-t question was left open as to whether any person had been aggrieved by the “immediate delivery.”

Additionally, .the record shows that appellant was not granted a hearing to determine the propriety of the “immediate delivery” order. In fact, the trial judge stated to appellant: “Today is a hearing on your contempt not to give them [documents] over.”

The ex parte order of August 8 was a nullity and the finding of contempt for its violation must be set aside.

The judgment is accordingly reversed and the case remanded to the lower court to allow appellant a hearing on the propriety of the relief granted in the August 8 order.

The documents in question have been heretofore delivered into the possession of this Court and, of course, would be retained pending final disposition of the cause.

Rhodes and Gregory, JJ., concur. Ness and Littlejohn, JJ., dissent.