
    Menuez v. The Grimes Candy Company.
    
      Contempt of court — May be punished by judge — Other than one . making decree — Judgment granting injunction■ — Appealed to circuit court — Circuit court may punish pending appeal, when.
    
    1. Contempts of court being punished as offenses against the administration of justice and'not as personal affronts to those ■ who exercise judicial functions, it is not indispensable that the violation of an injunction be punished by the judge who made the decree.
    2. An appeal having been taken to the circuit court from a judgment of the common pleas granting a perpetual injunction, a subsequent violation of the decree should be punished as a contempt by the circuit court, the statute providing that notwithstanding the appeal the injunction shall continue in force until suspended by the circuit court or two judges thereof.
    (No. 10683
    Decided December 17, 1907.)
    Error to the Circuit Court of Erie County.
    
      The plaintiff brought suit in the court of common pleas of Erie county for a perpetual' injunction restraining the defendant from the continuance of wrongs set forth in his petition. Upon a trial of the issues of fact the court found for the plaintiff and decreed a perpetual injunction as prayed for. The defendant at once perfected an appeal of the cause to the circuit court, and without taking any steps whatever to procure a dissolution or suspension of the injunction, continued to do the acts which it prohibited. The plaintiff thereupon filed in the circuit court a complaint with affidavits showing the aforesaid violation of said injunction, and charging the defendant with a contempt of court. This complaint the circuit court dismissed solely upon the ground, as appears from the record, that it was without jurisdiction in the premises.
    
      Messrs. Williams & Ramsey and Mr. E. B. King, for plaintiff in error.
    Where an appeal from a final order of the court of common pleas, part of which final order is an injunction, has been properly perfected in the circuit court, has such court jurisdiction to punish for contempt of court, the violation of such injunction?
    The question is one involving purely the law of Ohio upon the question of appellate procedure. A determination of the character of the technical appeal in Ohio is necessarily involved. Fortunately, upon the general question all doubt has long since been removed by a line of decisions of this court. Mason v. Alexander, 44 Ohio St., 328. In the latter case attention is called to the discussion of this subject by Swan, J., in Grant v. Ludlow’s Admr., et al., 8 Ohio St., 1; Bradford et al. v. Watts, Wright, 495; Bassett et al. v. Daniels et al., 10 Ohio St., 617; Long v. Hitchcock, 3 Ohio, 274; State, ex rel., v. Meacham, Clerk, 3 C. D., 335, 6 C. C., 31; Ginn v. Commissioners, 5 C. D., 412, 11 C. C., 396, affirmed, without report, in 58 Ohio St., 693.
    
      Mr. H. L. Peeke, for defendant in error.
    Can a court that never made an order in a case punish a person for contempt for violating an order of another court?
    We claim it is elementary law that only the court making the order can punish for contempt. Rapalje on Contempt, page 15, Sec. 13; People, ex rel., v. Judge, 27 Cal., 151; Johnston v. Commonwealth, 1 Bibb. (Ky.), 598; Phillips v. Welch, 12 Nev., 168; Morris v. Whitehead et al., 65 N. Car., 637; Penn, Jr., et al. v. Messinger et al., 1 Yeats (Pa.), 2; In re Williamson, 26 Pa. St., 9; State, ex rel., v. Bridge Co., 16 W. Va., 864; Smith v. Caldwell, Sneed (Ky), 341; M’Laughlin v. Janney, 6 Gratt (Va.), 609; Lord Mayor’s Case, 3 Wils., 188; 9 Cyc., page 30, “E”; Hawes on Jurisdiction, 223.
    And why should this not be correct as a matter of principle? Upon what .basis of justice or common sense can a person be punished by a court that never made an order in the case for violating the order of another court? The case of Myers v. State, 46 Ohio St., 473, is ample authority for the proposition that in Ohio the court of common pleas has sufficient power to protect its own orders.
   Shauck, C. J.

Counsel for the defendant suggests no mode for the enforcement of an injunction, other than a" proceeding in contempt against him who violates it. He proposes as elementary and as conclusive of the present case, that only the court which makes an order may punish the contempt which is implied in its violation. He admits no exception to this proposition unless the act which is a contempt is also an offense against the state, and so punishable by a court having jurisdiction of crimes and misdemeanors. We may concede that this view is taken in cases cited, and that it might be applicable here if ’the jurisdiction of the circuit court had been- invoked by a petition in error for a reversal of the judgment of the court of common pleas for error appearing upon its record. It is, however, too remote from the question here presented to be helpful in its determination. This was not a proceeding in error requiring a new petition to be filed in the circuit court and a summons issued to secure jurisdiction of the person of the defendant in error. It was an appeal with a view to a trial de novo; the steps necessary to perfect the appeal being taken in the original suit and requiring neither further pleadings nor process. When defendant perfected its appeal by giving the required notice and bond, the case by operation of law at once passed from the jurisdiction of the common pleas into that of the circuit court. A part of the case which so passed was the perpetual injunction from which the appeal was taken. Thereafter authority to suspend, modify or enforce the injunction was exclusively in the circuit court. All this is clearly expressed or implied in the provisions of Section 5235 of the Revised Statutes, defining, the effect of the appeal: “When an appeal is taken, and bond given, the judgment is thereby suspended, unless some part of the final judgment appealed from be an injunction, in which case such injunction shall not be suspended, except by order of the. circuit court or two judges thereof on reasonable notice to the adverse party. * * No action by the circuit court was required or contemplated to maintain the force of the injunction after the appeal, for the statute expressly preserved it. No such action could be taken by the court of common pleas for the case had passed from its jurisdiction. To conclude that the injunction may be violated with impunity, and thus rendered practically inoperative would be quite inconsistent with the careful provision made fors its preservation in the appellate court. Both the moral and legal effect of the punishment of contempts will be missed if it is regarded as the resentment of personal affronts offered to judges. Contempts are punished as offenses against the administration of justice, and the offense of violating a judicial order is punishable by the court which is charged with its enforcement, by whomsoever it may have been made.

Judgment reversed and cause remanded to the circuit court for further proceedings.

Reversed.

Price, Crew, Summers, Spear and Davis, JJ., concur.  