Blaylock, Spencer L., Jr.

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Contempt of Court -- Civil or Criminal

University of North Carolina School of Law

NORTH CAROLINA LAW REVIEWVolume 34 | Number 2 Article 62-1-1956Contempt of Court -- Civil or CriminalSpencer L. Blaylock Jr.Follow this and additional works at: http://scholarship.law.unc.edu/nclrPart of the Law CommonsThis Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina LawReview by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact law_repository@unc.edu.Recommended CitationSpencer L. Blaylock Jr., Contempt of Court -- Civil or Criminal, 34 N.C. L. Rev. 221 (1956).Available at: http://scholarship.law.unc.edu/nclr/vol34/iss2/6NOTES AND COMMENTSContempt of Court-Civil or CriminalThe two types of contempt proceedings recognized in the UnitedStates are criminal and civil.1 Criminal contempt proceedings are thosebrought to preserve the power and to vindicate the dignity of the courtand to punish disobedience of its processes and orders.2 Usually theyare separate and independent proceedings at law, with the public on oneside and the respondent on the other.3 The purpose of the sentence insuch proceedings is punitive as it is in the public interest to vindicatethe authority of the court and to deter other like derelictions.4 On theother hand, civil contempt proceedings are those instituted to preserveand enforce the rights of private parties to suits and to compel obedi-ence to orders and decrees made for the benefit of such parties.5 Theseproceedings are remedial and coercive in their nature, and the partieschiefly interested in their conduct and prosecution are those individualsfor the enforcement of whose private rights and remedies the suits wereinstituted. 6This distinction between the two types of contempt has been recog-nized in North Carolina. The North Carolina Supreme Court said inGalyon v. Stutts:7"With us contempts are defined and classified generally bytwo statutes: G. S. 5-1 and G. S. 5-8. These statutes recognize'Ex parte Grossman, 267 U. S. 87, 111 (1924); Bessette v. W. B. ConkeyCompany, 194 U. S. 324, 328 (1904); Boylan v. Detrio, 187 F. 2d 375, 378 (5thCir. 1951); Parker v. United States, 153 F. 2d 66, 70 (1st Cir. 1946) ; In reNevitt, 177 Fed. 448, 458 (8th Cir. 1902); Blackard v. Arkansas, 217 Ark. 661,664, 232 S. W. 2d 977, 979 (1950); State ex tel. Jones v. Miller, 147 Kan.242, 243, 75 P. 2d 239, 240 (1938); Marcum v. Commonwealth, 272 Ky. 1, 6,113 S. W. 2d 462, 465 (1938) ; Holt v. McLaughlin, 357 Mo. 844, 845, 210 S. W.2d 1006, 1007 (1948) ; Swanson v. Swanson, 10 N. J. Super. 513, -, 77 A. 2d 477,480 (1950); Canavan v. Canavan, 18 N. M. 640, 643, 139 Pac. 154, 156 (1914);Bridges v. Oklahoma, 9 Okla. Crim. 450, 452, 132 P. 503, 504 (1913); Lief v.Lief, 14 N. J. Misc. 27, -, 178 Atl. 762, 763 (1935) ; O'Brien v. State ex rel. Bibb,26 Tenn. App. 270, 273, 170 S. W. 2d 931, 932 (1942) ; Local 333B, United MarineDivision of International Longshoreman's Ass'n. v. Virginia Ferry Corp., 193 Va.773, 779, 71 S. E. 2d 159, 163 (1952).-Galyon v. Stutts, 241 N. C. 120, 123, 84 S. E. 2d 822, 825 (1954).Parker v. United States, 153 F. 2d 66, 70 (1st Cir. 1946). See also, 17 C. J. S.Contempt § 5 (1939).'Ex parte Grossman, 276 U. S. 87, 111 (1924)."Blackward v. Arkansas, 217 Ark. 661, 664, 232 S. W. 2d 977, 979 (1950).'Ex parte Joe L. Earman, 85 Fla. 297, 314, 95 So. 755, 760 (1923) ; Marcumv. Commonwealth, 272 Ky. 1, 6, 113 S. W. 2d 462, 465 (1938); Galyon v.Stutts, 241 N. C. 120, 123, 84 S. E. 2d 822, 825 (1954). See also, 12 Am. Jim.Contempt § 6 (1938).7241 N. C. 120, 124, 84 S. E. 2d 822, 825 (1954).NORTH CAROLINA LAW REVIEWand preserve the fundamental distinction between civil and crim-inal contempt in substance but not in name. Acts or omissionswhich ordinarily constitute criminal contempt as defined in thetextbooks are designated by our statute (G. S. 5-1) as punish-able 'for contempt,' without further designation; the acts oromissions which ordinarily constitute civil contempt as definedin the books are designated by our statute (G. S. 5-8) as punish-able 'as for contempt.' Thus, under our statutes the proceedingsfor criminal and civil contempt are 'for contempt' and 'as forcontempt,' respectively."In an earlier case,8 the North Carolina Supreme Court had this tosay:"A person guilty of any of the acts or omissions enumerated inthe eight subsections of G. S. § 5-1 may be punished for con-tempt because such acts or omissions have a direct tendencyto interrupt the proceedings of the court or to impair the re-spect due to its authority. A person guilty of any of the acts orneglects catalogued in the seven subdivisions of G. S. § 5-8 ispunishable as for contempt because such acts or neglects tendto defeat, impair, impede, or prejudice the rights or remediesof a party to an action pending in court."The statutes to be discussed in this note are N. C. General Statutes§ 5-1, § 5-4, § 5-8 (1953). The pertinent subsection of G. S. § 5-1 issubsection three, which reads as follows:"Any person guilty of any of the following acts may be pun-ished for contempt:3. Wilful disobedience of any process or order lawfully issued byany court."The punishment for a violation of this statute is limited by G. S.§ 5-4, which provides:"Punishment for contempt for matters set forth in the pre-ceding sections shall be by fine not to exceed two hundred andfifty dollars, or imprisonment not to exceed thirty days, or both,in the discretion of the court."The applicable subsection of G. S. § 5-8 is subsection two:"Every court of record has power to punish as for contemptwhen the act complained of was such as tended to defeat, impair,impede or prejudice the rights or remedies of a party to an action,then pending in court-' Luther v. Luther, 234 N. C. 429, 431, 67 S. E. 2d 345, 347 (1951).[Vol. 34NOTES AND COMMENTS2. Parties to suits, attorneys, and all other persons for the non-payment of any sum of money ordered by such court in caseswhere execution cannot be awarded for the collection of thesame."Much confusion has arisen in the application of these statutes. Thestatutes heve been applied by the lower courts and the attorneys to thewrong situations. In several cases,9 the lower court has sentenced theoffender to imprisonment until he should comply with the court's orders.The supreme court in considering these cases has said that the actionwas brought under G. S. § 5-1, but in reversing on other grounds (lackof evidence to show willful failure to comply with the court's orders),the court has failed to mention that the sentences were in conflict withG. S. § 5-4 which limits the imprisonment under G. S. § 5-1 to thirtydays. Probably the court failed to mention the conflict because it wasreversing on other grounds, but it is submitted that if it had discussedit, or had said that the facts presented made out a situation underG. S. § 5-8, punishment for which is not limited by G. S. § 5-4, some ofthe confusion as to which statute to use would have been removed. Itwas thought that this confusion would be cleared up by the court's state-ment in Galyon v. Stutts,i0 in which the court indicated which statutewas applicable to which situation. But not all of this has been elim-inated, as evidenced by the recent case of Basnight v. Basnight."i"In that case a wife had been awarded one hundred dollars permonth as support for herself and her children. Her husband had failedto make these support payments, and the wife instituted contempt pro-ceedings to compel payment. The lower court found the husband guiltyof willfully and contumaciously failing to make the payments and sen-tenced him to imprisonment until he should comply with the order.Upon appeal, the North Carolina Supreme Court split three to threefor reversal on the ground that the evidence did not make out the willfuland contumacious failure to pay, but reduced the sentence to thirtydays' imprisonment, saying that the sentence for contempt was limitedby G. S. § 5-4 to thirty days.The action was to enforce payment of support. Many jurisdictions,' 2' Lamm v. Lamm, 229 N. C. 248, 49 S. E. 2d 403 (1948) ; Smithwick v. Smith-wick, 218 N. C. 503, 11 S. E. 2d 455 (1940) ; Vaughan v. Vaughan, 213 N. C.189, 195 S. E. 351 (1938); West v. West, 199 N. C. 12, 153 S. E. 600 (1930).S2Galyon v. Stutts, 241 N. C. 120, 123, 84 S. E. 2d 822, 825 (1954).11242 N. C. 645, 89 S. E. 2d 259 (1955).12Robertson v. Alabama, 20 Ala. App. 514, -, 104 So. 561, 565 (1924);Henderson v. Henderson, 86 Ga. App. 812, 814, 72 S. E. 2d 731, 733 (1952);Perry v. Perry, 165 Ind. 67, 74 N. E. 609 (1905) ; Barrett v. Barrett, 287 Ky.216, 220, 152 S. W. 2d 610, 613 (1941); Thomas v. Thomas, 132 Neb. 827, 830,273 N. W. 483, 484 (1937) ; Canavan v. Canavan, 18 N. M. 640, 643, 139 Pac. 154,154 (1914); Ex parte Bighorse, 178 Okla. 218, 219, 62 P. 2d 487, 489 (1936);Hillyard v. District Court of Cache County, 68 Utah 114, 208 P. 2d 1113 (1949) ;19561NORTH CAROLINA LAW REVIEWincluding North Carolina,"3 have said that contempt proceedings for theenforcement of alimony and support payments are civil rather thancriminal. This seems to be the logical proceeding as alimony and sup-port are private rights secured by a court order for the benefit of thewife or children,' 4 and, as noted above, the purpose of these contemptproceedings is to enforce the private rights of parties to suits and tocompel obedience to the court's orders for the benefit of these parties.rIt was stated in the plaintiff's brief that the contempt proceeding hadbeen brought under G. S. § 5-1. It is submitted that the wife's in-terests would have been better served if the contempt proceeding hadbeen brought under G. S. § 5-8.10 This statute has been said to embodythe textbook definition of civil contempt.' 7 The punishment for civilcontempt is usually imprisonment of an indefinite duration, that is, untilthe offender shall comply with the court's order or process1s There-fore, G. S. § 5-8 should have been used, as it is not limited in its pun-ishment, and because an unlimited imprisonment has the desired co-ercive effect, whereas a limited imprisonment only punishes the offenderwho, upon completion of his sentence, cannot again be tried for con-tempt for the same dereliction, as the prior action would be res judicatain the second action.Obviously the wife brought the contempt proceeding to coerce thehusband into paying the support rather than to punish him for his dis-obedience of the court's order. In view of this fact, it is respectivelysubmitted that despite the apparent error of plaintiff's attorney in as-serting that the contempt proceeding was under G. S. § 5-1, the courtshould have ignored this contention, pointed out that the facts madeout a case under G. S. § 5-8, and affirmed the sentence of the lowercourt. By so doing, the court would not only have more effectively re-Simmons v. Simmons, 66 S. D. 76, 78, 278 N. W. 537, 538 (1938); Eddens v.Eddens, 188 Va. 511, 523, 50 S. E. 2d 397, 403 (1949) ; Smith v. Smith, 81 W. Va.761, 95 S. E. 199 (1918). See also, 12 Am. JUR. Contempt § 6 (1938)."Dyer v. Dyer, 213 N. C. 634, 197 S. E. 157 (1938)."Cf. Taylor v. Taylor, 93 N. C. 418, 420 (1885). See also, 17 Am. Jun.Divorce and Separation § 496 (1938)." Parker v. United States, 153 F. 2d 66, 70 (1st Cir. 1946); Blackwood v.Arkansas, 217 Ark. 661, 664, 232 S. W. 2d 977, 979 (1950) ; Cromartie v. Com-missioner, 85 N. C. 211, 215 (1881).20 It is assumed that the plaintiff was privileged to bring the action underG. S. § 5-8 as it was stated in the plaintiff's brief that the husband did not own anyproperty upon which an execution would lie.1 Galyon v. Stutts, 241 N. C. 120, 123, 84 S. E. 2d 822, 825 (1954).21 Parker v. United States, 153 F. 2d 66, 70 (1st Cir. 1946); Chitwood v.Eyman, 74 Ariz. 334, 343, 248 P. 2d 884, 890 (1952) ; Hervey v. Hervey, 186 Ark.179, 52 S. W. 2d 963 (1932) ; State ex rel. Cash v. District Court of First JudicialDistrict, 78 Mont. 92, 95, 252 Pac. 388, 399 (1927) ; Delozier v. Bird, 123 N. C.689, 694, 31 S. E. 834, 835 (1898) ; Cromartie v. Commissioner, 85 N. C. 211,216 (1881) ; Hutchinson v. Canon, 6 Okla. 725, 55 Pac. 1077 (1898); Phillips v.Phillips, 165 Wash. 616, 6 P. 2d 61 (1931).[Vol. 34NOTES AND COMMENTSsolved the rights of the litigants, but would have succeeded in clearingup a considerable amount of the confusion which has so long existed inthis area.SPENCER L. BLAYLOCK, JR.Contracts-Conditional Acceptances-Variations inthe Construction of the Offeree's LanguageThere is uniform adherence to the rules that: (1) "To consummatea valid contract an acceptance must be unequivocal and must not change,add to or qualify the terms of the offer."' (2) Variations do not change,add to or qualify the terms of the offer when additional language isframed in words of request2 or when additional language merely recitesconditions implied in fact or in law from the offer.3 Paradoxically,however, there seems to be little uniformity in the application of theserules to individual cases in which the language, although not changingthe terms of the price, or nature of the subject matter of the contract,does to some extent create contingencies. The following cases, all con-cerned with transactions for the sale of real estate, with the exceptionof one, are illustrative of this problem.The phrase "subject to" has traditionally been a conditional ex-pression.4 One court, in construing what it determined to be a con-ditional acceptance said: "The meaning usually attributed to suchwords as 'subject to' is that a promise that is so limited is a condi-tional promise, one that is different from that for which the offerorbargained." 5 However, in a recent North Carolina case, the court hadno difficulty in construing the defendant's use of "subject to" as aphrase which did not affect the validity of an acceptance.0 Defendanthad used the following language in replying to plaintiff's offer. "Yourtelegram... is accepted subject to details to be worked out by you and[my lawyer]."' Defendant contended that his reply did not constitutean acceptance because the language was conditional. The court decidedthat the phrase "subject to details to be worked out . . ." was "an ex-pression of hope or suggestion." s In the court's discussion may be found1 Recent Cases, 20 GIN. L. REv. 68, 69 (1952).2 1 WILLISTON, CONTRACrS § 79 (rev. ed. 1936).Id. § 78.'1 CORBIN, CONTRACTS § 61 (1950).'Lawrence Block Co. v. Palston, 123 Cal. App. 2d 300, -, 266 P. 2d 856, 862(1954).' Carver v. Britt, 241 N. C. 538, 85 S. E. 2d 888 (1955).'Id. at 539, 85 S. E. 2d at 889.' Id. at 541, 85 S. E. 2d at 890. The court quoted as follows from 17 C. J. S.,CONTRACTS at 384: "'If an offer is accepted as made, the acceptance is not con-ditional and does not vary from the offer because of inquiries whether the offerorwill change his terms, or as to future acts, or by the expression of a hope, orsuggestion as to terms, or by the intimation that a time be fixed for the con-19561

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Contempt of Court -- Civil or Criminal

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