THE CONTINENTAL NATIONAL BUILDING AND LOAN ASSOCIATION, ET ALS., APPELLANTS,
v.
G. S. SCOTT, RECEIVER, DEFENDANT
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The Florida Supreme Court held that a demurrer to a rule to show cause in a contempt proceeding is an improper pleading, and that defects in the motion or affidavits supporting the rule should be addressed by motion to discharge rather than by demurrer.
A demurrer to a rule to show cause in a contempt proceeding is not a proper pleading. The rule is merely process founded on motion and affidavits, not a pleading subject to demurrer. If the affidavits, motion, or showing for issuing the rule is defective or insufficient, the proper practice is to move to discharge the rule.
“it is not necessary that the matters alleged as the ground of the charge of contempt should appear on the face of the rule. The rule was mere process, and was sufficient, if it appeared that the proceeding was one within the jurisdiction of the court.”
Establishes that a rule to show cause need only demonstrate jurisdiction and need not contain all elements of the contempt charge on its face
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe Continental National Building & Loan Association appealed a decree from the Circuit Court of the Fifth Circuit to the Supreme Court and obtained a…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Contempt Proceedings cases and more on FLexlaw
Carter, J.:
On September 14, 1898, upon motion and affidavits filed, this court issued a rule against the defendant requiring him to show cause why he should not be held and adjudged in contempt for his alleged violation of the supersedeas obtained upon an appeal in chancery now pending in this court from a decree entered by the Circuit Court of the Fifth Circuit in a cause wherein the Continental National Building & Loan Association et al., appellants in this court, were defendants, and D. A. Miller et al. appellees in this court were complainants, the alleged violation consisting in defendant’s failure and refusal to •deliver to G. W. Hyde, president of one of the appellant corporations, the books, papers and assets of said corporation, that had come into his hands as receiver by reason of the decree appealed from. The defendant files what purports to be a demurrer to the rule alleging that the “rule issued against him is insufficient and should not have been issued,” because it fails to allege various matters which he contends are necessary to be shown in order to hold him for contempt. There is a motion to strike from the files this demurrer upon the ground that no such pleading as a demurrer to the rule is authorized or recognized in contempt proceedings.
We are of opinion that this motion is well taken. In Columbia Water Power Co. v. Columbia, 4 Rich. (S. C.) 388, the court say “'it is not necessary that the matters alleged as the ground of the charge of contempt should appear on the face of the rule. The rule was mere process, and was sufficient, if it appeared that the proceeding was one within the jurisdiction of the court.” Ordinarily defects in process are grounds for motions to quash — not for demurrer. The proceeding by rule to punish for contempt seems ,to be a very ancient one, and we have been unable to find a single case where a demurrer to the rule has ever been resorted to in the absence of a statute authorizing it, or changing the nature of the rule as it existed at common law. The rule is not a pleading; it is merely process founded upon a motion and affidavits, and a demurrer to the rule can not reach defects in the motion or affidavits. If the affidavits or motion be defective, or the showing made for issuing the rule be insufficient, the proper practice is to move to discharge the rule. Cheadle v. State, 110 Ind. 301, 11 N. E. Rep. 426.
The motion to strike the demurrer is granted.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Ex parte Earman, 85 Fla. 297 (Fla. 1923)…, 192 S. W. Rep. 313, and Notes; 113 C. J. 64. But the motion to quash went to the rule as an entirety, not to separate portions of the rule which is process, if not as here used also a pleading. See Continental Nat. Building & Loan Ass’n v. Scott, 40 Fla. 386, 24 South. Rep. 473, as to appropriate procedure. The Constitution vests "the judicial power of the State” in designated tribunals and judges, and such tribunals and judicial officers are by the law protected from insult [*313] and interference, fo…