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N.C.App.1 FALL SESSION 1972 711
State v. Howell
31st to pay or they would take him to court. She wrote the note,
State's Exhibit 3, stating "Mr. Howell, Mgr. & Plaintiff will
drop charges for amount past due 25.00 if paid before court
date." Howell knew nothing about the purported summons
against Ayers before it was sent out, did not authorize it to be
sent, and had never seen it until he appeared in court on 12
June 1972.
At the close of the State's evidence the court overruled de-fendants'
motions to dismiss and entered judgment making
findings of fact, adjudging both defendants to be in contempt
of court, and ordering each to pay a fine of $300.00. From this
judgment defendants appealed to the Court of Appeals.
Attorney General Robert Morgan by Associate Attorney
Ruth G. Bell for the State, appellee.
Deal, Hutchins & Minor by William Kearns Davis for de-fendant
appellant, Billy H. Howell.
Mooye & Green by Thomas W. Moore, Jr., f o r defendant
appellant, Penny Phipps.
PARKER, Judge.
Defendants have been charged with violation of G.S. 5-8,
which grants to every court of record power to punish certain
conduct as for contempt "when 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." In our
opinion the evidence in the present case falls short of being
sufficient to support the trial court's finding that defendants
violated this statute. There was no showing that any act of
defendants, however improper, was such as tended to defeat,
impair, impede, or prejudice the rights or remedies of any party
to any action then pending in court. Mr. and Mrs. Ayers were
not parties to any action then pending in court, and therefore
any acts of defendants, however violative of the Ayers' rights,
were not such as warranted punishment of defendants "as for
contempt" under G.S. 5-8. The closest which the evidence came
to showing th'at the rights of any party to a pending action
may have been impeded as result of improper acts of the de-fendants
was the magistrate's testimony that he spent approxi-mately
25 minutes investigating the false summons and that
while he did so "others had to wait." However, the magistrate
could not remember the name of any person who was thereby
Object Description
| Title | North Carolina Court of Appeals Reports [v.016, Fall Session Session 1972] |
| Creator | North Carolina. Court of Appeals. |
| Date | 1973 |
| Subjects | Law reports, digests, etc.--North Carolina; Court records--North Carolina |
| Place | North Carolina, United States |
| Description | Volume 16, Fall Session Session 1972. Cited as 16 N.C.App. The North Carolina Court of Appeals Reports are the official report of opinions of the North Carolina Court of Appeals. Includes cases and other information about the courts of North Carolina. |
| Publisher | Court of Appeals of North Carolina |
| Agency-Current | North Carolina Court of Appeals, Judicial Department |
| Rights | State Document see http://digital.ncdcr.gov/u?/p249901coll22,63754 |
| Collection | North Carolina State Documents Collection. State Library of North Carolina |
| Type | Text |
| Language | English |
| Format | Reports; Legal documents |
| Digital Characteristics-A | 35.8 MB; 826 p. |
| Serial Title | North Carolina Court of Appeals Reports |
| Digital Collection | North Carolina Digital State Documents Collection |
| Digital Format | application/pdf |
| Pres File Name-M | pubs_serial_courtofappealsreports_vol_016.pdf |
| Pres Local File Path-M | \Preservation_content\StatePubs\pubs_law\images_master\ |
| OCLC Number-Original | 1681248 |
Description
| Title | Page 735 |
| Full Text | N.C.App.1 FALL SESSION 1972 711 State v. Howell 31st to pay or they would take him to court. She wrote the note, State's Exhibit 3, stating "Mr. Howell, Mgr. & Plaintiff will drop charges for amount past due 25.00 if paid before court date." Howell knew nothing about the purported summons against Ayers before it was sent out, did not authorize it to be sent, and had never seen it until he appeared in court on 12 June 1972. At the close of the State's evidence the court overruled de-fendants' motions to dismiss and entered judgment making findings of fact, adjudging both defendants to be in contempt of court, and ordering each to pay a fine of $300.00. From this judgment defendants appealed to the Court of Appeals. Attorney General Robert Morgan by Associate Attorney Ruth G. Bell for the State, appellee. Deal, Hutchins & Minor by William Kearns Davis for de-fendant appellant, Billy H. Howell. Mooye & Green by Thomas W. Moore, Jr., f o r defendant appellant, Penny Phipps. PARKER, Judge. Defendants have been charged with violation of G.S. 5-8, which grants to every court of record power to punish certain conduct as for contempt "when 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." In our opinion the evidence in the present case falls short of being sufficient to support the trial court's finding that defendants violated this statute. There was no showing that any act of defendants, however improper, was such as tended to defeat, impair, impede, or prejudice the rights or remedies of any party to any action then pending in court. Mr. and Mrs. Ayers were not parties to any action then pending in court, and therefore any acts of defendants, however violative of the Ayers' rights, were not such as warranted punishment of defendants "as for contempt" under G.S. 5-8. The closest which the evidence came to showing th'at the rights of any party to a pending action may have been impeded as result of improper acts of the de-fendants was the magistrate's testimony that he spent approxi-mately 25 minutes investigating the false summons and that while he did so "others had to wait." However, the magistrate could not remember the name of any person who was thereby |
