FORM No. 1170-Affidavit in proceedings for punishing a contempt of court. (Common form.) [Title of court and cause.] [Venue.] day of , 19, A. B., being duly sworn, says: That on the a judgment of a perpetual injunction [or other restraining judgment or order] was rendered and entered against C. D. in an action in the court of the state of in the county of in which this affiant, A. B., is plaintiff, and the said C. D. is defendant; that said injunction [or order], among other things, enjoined said C. D., the defendant in that action, from [stating the acts which said injunction enjoined said C. D. from doing]; that a copy of said injunction, certified to by the clerk of said court, was served on said C. D. at the county of in the state of on the day of 19 and he then had, and ever since has had, knowledge and notice of said injunction; that said judgment has not been appealed from, reversed, or set aside, and is in full force and effect; that after said service, to wit, on the 19, said C. D. did [stating the acts constituting the contempt], in disobedience to the commands of said injunction, and therefore this affiant charges said C. D. with a contempt of this court. [Jurat.] day of [Affiant's signature.] FORM No. 1171—Affidavit in proceedings for contempt.-Action at law to prevent usurpation of office. (In State ex rel. Mahoney v. McKinnon, 8 Ore. 487.)1 I. William R. Willis, being duly sworn, say: I am an attorney for plaintiff above-named; that plaintiff did, on the 25th day of June, 1879, recover judgment in the above-entitled court and cause against the defendants, J. H. Shupe and E. J. Page; that [thereby] they were [adjudged] guilty of usurping and unlawfully exercising the office of trustees of the city of Oakland, and [it was therein further ordered] that they be excluded therefrom; that the said defendants 1 The affidavit and the motion set forth in forms Nos. 1171 and 1172 were held sufficient as a basis for an order to the defendants to show cause. It is not improper for the attorney to make the affidavit upon which the proceedings for contempt may be instituted where the statute provides that any person having knowledge of the facts is competent to make such affidavit: State ex rel. Mahoney v. McKinnon, 8 Ore. 487, 491, citing section 643 of the Oregon Civil Code. [and each of them], in disobedience of said lawful judgment, continue to and do now usurp and exercise the office of trustees of said city of Oakland, refusing and neglecting obedience to said judgment. 1 [Jurat.] 1 William R. Willis. FORM No. 1172-Motion for warrant of arrest in proceedings for contempt in neglecting and refusing to obey a judgment. (In State ex rel. Mahoney v. McKinnon, 8 Ore. 487.) [Title of court and cause.] Now comes the plaintiff above named, and moves the Hon. H. F. Watson, judge of the above-entitled court, upon the foregoing affidavit, for a warrant of arrest against the said defendants, E. J. Page and J. H. Shupe, to answer for contempt in neglecting and refusing to obey the judgment described in said affidavit. William R. Willis, Plaintiff's attorney. FORM No. 1173-Order to show cause, made on the filing of affidavit charging contempt. [Title of court and cause.] Upon reading and filing the affidavit of A. B., charging and showing that C. D. has disobeyed the commands of a judgment of injunction [or other restraining judgment or order] rendered and entered in the court of the state of in an action therein in which said A. B. is plaintiff and said C. D. is defendant: It is ordered, that the said C. D., show cause before said court at the courtroom thereof, on [stating the time], why he should not be punished for a contempt of said court for such disobedience. It is further ordered, that this order be served on said C. D. by delivering to him personally a certified copy thereof, with a copy of said affidavit of A. B. thereto attached, at least days before the date of the hearing of said order to show cause. [Date.] S. T., Judge. FORM No. 1174-Warrant of attachment to be issued in proceedings to pun ish for a contempt of court. [Title of court and cause.] It appearing from the affidavit of A. B., filed on the day of 19, that C. D. has disobeyed the commands of the injunc tion [or order] in the judgment rendered and entered on the 1 This last averment in the original was upon information and belief. Jury's Pl.-118. day of 19 in an action in said in the county of court of the state of in which said A. B. is plaintiff and said C. D. is defendant, and that said C. D. was personally served with a copy of said judgment and injunction [or order] on the 19 and that said C. D., after he was so served with said copy, and knew of said judgment and injunction. [or order], wilfully disobeyed the commands of said injunction [or order], and is thereby guilty of a contempt of the court: day of Now, therefore, it is ordered, that a warrant of attachment be issued to bring said C. D. before this court on [stating the time, then and there to answer the charge of contempt contained in said affidavit. And it is further ordered, that a copy of said affidavit be served on said C. D. at the time he is arrested under such warrant of attachment. [Date.] S. T., Judge. FORM No. 1175-Recitals and judgment for a contempt of court committed in the presence of the court. [Title of court and cause.] day of Whereas, during the trial of the above-entitled action in this court, before a jury, A. B., Esq., was attorney for the plaintiff, and C. D., Esq., was attorney for the defendant, and during the progress of the trial of said action the said A. B., who was the attorney for plaintiff, on the 19 in the presence of the court, and in the presence of the jury before whom said action was being tried, struck said C. D. a violent blow with a cane [or state the fact as it may be]; and whereas, said misconduct on the part of said A. B. tended to and did interrupt the due course of said trial: Wherefore, the court finds that said A. B. is guilty of a contempt of this court; and it is adjudged that he be punished for such contempt by a fine of $ [or state any other penalty imposed). FORM No. 1176-Judgment in a proceeding for a contempt of court against a witness for refusing to answer a relevant and material question. [Title of court and cause.] It appearing to the court, that in the above-entitled action, while the same was regularly on for trial in this court, at the courtroom day of thereof, on the 19 one F. G. was duly sworn as a witness, and was being examined as a witness; that A. B., the attorney for the plaintiff in the action, asked said F. G., as such witness in the action, this question: [State the question]; that such question was and is material and relevant under the issues in the action; that said F. G., said witness, thereupon declined to answer said question, notwithstanding he was then and there ordered by the court to answer the same; that said F. G. thereupon refused, and still refuses, to answer said question: Wherefore, the court finds that because thereof said F. G. is guilty of a contempt of this court; and it is adjudged that the said F. G. be punished for such contempt by imprisonment in the county jail of the county of in this state, until he consents to answer such question. Done in open court, this day of , 19 S. T., Judge. § 491. ANNOTATIONS.—Trials, witnesses, and proceedings for contempt. 1. Trials. Admissions in pleadings. 2. Unnecessary averments need not be proved. 3. Objections on motion stated in the conjunctive. 4. Abstract instruction.-When prejudicial. 5. Rule as to abstract instruction not an inflexible one. 6. Erroneous instruction.-When not prejudicial. 7. Not error to refuse incorrect charge. 8. Repetitions in charges properly refused. 9. Plea in abatement amounting to general denial.—Trial. 10, 11. Exceptions. 12. Repetition of exceptions upon trial. 13. Matters of record properly have no place in a bill of exceptions. 14. Discretionary authority of courts of equity to consolidate causes. 16. Effect as to issues and pleadings. 17. Single or separate judgments.-Reference. 18. Witnesses and contempts.-Statutes applicable to proceedings. 19. Jurisdiction to punish for contempt. 20, 21. Judges at chambers. 22, 23. Proceeding in vacation. 24-26. United States commissioner. 27. Disobedience by judge of writs of supersedeas of higher court. 29. State as party. 30. Affidavit, where required, is jurisdictional. 31, 32. Affidavit upon information and belief. 33. Omission cured by answer. 34-36. Judgment must specify the contempt. 37. Refusing to answer question.-Recital in commitment. 38, 39. Defenses. 40. Appealability of order. 1. TRIALS.-Admissions in pleadings. -Admissions contained in the pleadings are not required to be proved as facts in the case. The pleadings in a case are before the court, and constitute a part of the proceedings without being introduced in evidence: Knowles V. New Sweden I. Dist., 16 Idaho 217, 101 Pac. 81, 85; Bloomingdale v. DuRell, 1 Idaho 33; East Tennessee etc. Co. v. Kane, 92 Ga. 187, 18 S. E. 18, 22 L. R. A. 315. 2. Unnecessary averments need not be proved: Luttermann V. Romey (Iowa), 121 N. W. 1040, 1041, citing Iowa code § 3639; Knapp v. Cowell, 77 Iowa 528, 42 N. W. 434. 3. Objections on motion stated in the conjunctive.-On a motion to strike out evidence on several grounds stated in the conjunctive, it is not the law that the motion must be denied unless all the objections are well based: United States Oil etc. Co. v. Bell, 153 Cal. 781, 788, 96 Pac. 901 (to quiet title, and cross-complaint to rescind and annul deed). 4. Abstract instruction.-When prejudicial. It is prejudicial error to give an abstract instruction which might be construed as an intimation from the court that there was some evidence on that issue when there was in fact none: C. H. Smith etc. Co. v. Weatherford (Ark.), 121 S. W. 943, 945; St. Louis etc. R. Co. v. Townsend, 69 Ark. 380, 63 S. W. 994; St. Louis etc. R. Co. v. Woodward, 70 Ark. 441, 69 S. W. 5; Harris L. Co. v. Morris, 80 Ark. 260, 96 S. W. 1067; Fordyce v. Key, 74 Ark. 19, 84 S. W. 797; Arkansas etc. R. Co. v. Stroude, 77 Ark. 109, 91 S. W. 18, 113 Am. St. Rep. 130. 5. Rule as to abstract instruction not an inflexible one.-The rule that the court should not instruct in such a manner as to intimate that there is evidence upon some issue where no evidence exists is not an inflexible one; for example, where it can be seen that no prejudice could have resulted from the giving of such an instruction, the verdict will not be set aside: C. H. Smith etc. Co. v. Weatherford (Ark.), 121 S. W. 943, 946; Miller v. Nuckolls, 77 Ark. 64, 91 S. W. 759, 4 L. R. A. (N. S.) 149, 113 Am. St. Rep. 122, 7 Am. & Eng. Ann. Cas. 110; Jonesboro etc. R. Co. v. Cable, 89 Ark. 518, 117 S. W. 550. self: Chicago R. I. & P. Co. v. Smith (Ark.), 127 S. W. 715, 717, citing St. Louis etc. R. Co. v. Carter, 126 S. W. 99, and other cases. 7. Not error to refuse incorrect charge. -A charge to the jury should be correct in every particular; otherwise, a party can not complain of a refusal to give it: C. H. Smith etc. Co. v. Weatherford (Ark.), 121 S. W. 943, 946. 8. Repetitions in charges properly refused. A charge to the jury which is a repetition in substance of other charges given may be properly refused: St. Louis etc. R. Co. v. Wilcox (Tex. Civ. App.), 121 S. W. 588, 590; McCray v. Galveston etc. R. Co., 89 Tex. 168, 34 S. W. 95. 9. Plea in abatement amounting to general denial.-Trial.-Matters set up in a so-called "plea in abatement" which amount to nothing more than a general denial do not warrant a trial of such matters separate and apart from the trial on the merits: Union Loan etc. Co. v. Farbestein (Mo. App.), 127 S. W. 656, 659. 10. Exceptions.-The object of a bill of exceptions is to make that a part of the record which is not already a part of it: Ewing v. Vernon County, 216 Mo. 681, 116 S. W. 518, 519. 11. Under section 647 of the Code of Civil Procedure of California, an exception is allowed without especially reserving the same, among other things, from "an order or decision from which an appeal may be taken," etc. Under section 939 of the same code, an appeal may be taken, among other things, from "an order granting or refusing a new trial." Hence. where the law, as in California, allows an exception to a ruling upon a motion for a new trial, it is not necessary to especially reserve the exception inasmuch as the order is deemed excepted to. 12. Repetition of exceptions upon the trial. When upon the first appearance of improper testimony the counsel raises his objection, and the same is overruled, he is not required to continually interpose a like objection to all similar testimony: McKee v. Rudd, 222 Mo. 344, 121 S. W. 312, 320, 133 Am. St. Rep. 529. 13. Matters of record properly have no place in a bill of exceptions, and such recitals therein add nothing to the validity of the bill: Flanagan Mill. Co. v. City of St. Louis, 222 Mo. 306, 121 S. W. 112; Hogan v. Hinchey, 195 Mo. 527, 533, 94 S. W. 522; Harding v. Bedoll, 202 Mo. |