Opinion
Nos. 33,380, 33,384.
January 2, 1943.
Appeal and error — nonappealable order.
1. An order requiring defendant to do a certain act and if he fail to do it to show cause why he should not be adjudged in contempt is not a final order and is not appealable.
Certiorari — proceedings reviewable — adjudication of criminal contempt.
2. An order adjudging defendant in contempt and fining him $50 or, in case he does not pay the fine, imprisoning him for 30 days, is an adjudication of criminal contempt and is reviewable only on certiorari.
Two appeals by defendant John A. Johnson, one (No. 33,380) from an order of the district court for St. Louis county, C.R. Magney, Judge, requiring appellant to do a certain act or show cause why he should not be adjudged in contempt if he failed to do it; and the other (No. 33,384) from an order of said court, Edwin J. Kenny, Judge, adjudging appellant to be in contempt, fining him, and, in case of his failure to pay the fine, imprisoning him. On motion of plaintiffs, appeals dismissed.
Leslie S. Higk, for appellant.
Jenswold, Butchart Dahle, for respondents.
The motion to dismiss the appeals must be granted. One appeal (No. 33,380) is from an order of the district court of St. Louis county requiring appellant to pay to the receiver appointed by the court the sum of $165 and to account to him for the value of provisions taken within three months prior to the date of the order, and, in case of his default so to do, to show cause why he should not be adjudged in contempt. Such an order is not appealable because it is not final. State v. Carey, 151 Minn. 517, 187 N.W. 710.
The other appeal (No. 33,384) is from an order of said court finding defendant guilty of contempt for failure to comply with the above order, fining him the sum of $50, and providing that in case he falls to pay the fine he shall be committed to the county jail for 30 days. Although this adjudication of contempt arose out of a civil proceeding, it does not provide that the fine shall be paid to plaintiff or for his benefit. It is by way of punishment only and therefore is in the nature of a criminal contempt.
"The rule is that if a contempt is a criminal contempt, one simply to impose a punishment, it can be reviewed only by certiorari; but if it is one to aid the enforcement of a civil remedy, as by compelling the one adjudged in contempt to deliver property in his possession, it is a civil contempt reviewable by appeal." Proper v. Proper, 188 Minn. 15, 16, 246 N.W. 481.
The attempted appeal must be dismissed. Campbell v. Motion P. M. Operators, 151 Minn. 238, 186 N.W. 787. See Wenger v. Wenger, 200 Minn. 436, 274 N.W. 517.
Appeals dismissed.