for the violation of an injunction is appealable. State ex rel. Chicago, B. & Q. R. Co. v. Bland (1905) 189 Mo. 197, 88 S. W. 28, 3 Ann. Cas. 1044.

The North Dakota Code (Rev. Code 1899, § 5954) gives an accused party who has been adjudged guilty of contempt a right of appeal in both civil and criminal contempts. See Merchant v. Pielke (1900) 9 N. D. 245, 83 N. W. 18, wherein an order on the defendant to show cause why he should not be adjudged in contempt for disobedience of the injunctional features of a decree was held appealable. The court said: "The first and most difficult point presented by the appeal concerns the appealability of this order. Respondent contends that the contempt charged is a criminal contempt, and hence appellant has no interest in the subject-matter that gives him any standing in an appellate court. We cannot concede this. Our Revised Codes (§ 5934) define civil contempts as follows: 'Every court of record has power to punish by fine and imprisonment, or either, a neglect or violation of duty or other misconduct by which right or remedy of a party to a civil action or proceeding pending in the court may be defeated, impaired, impeded, or prejudiced in the following cases:' After stating a number of cases, it continues, in subdivision 3: 'Or for any other disobedience to any lawful order, judgment, or process of the court.' The allegations in the petition for the order to show cause bring this case clearly within this definition of a civil contempt. It also comes clearly within the provisions of subdivision 8 of the same section, which reads: 'In any other case expressly authorized by the codes or statutes of this state, or where an attachment, or any other proceeding to punish for a contempt has been usually adopted and practised in a court of record to enforce a civil remedy or to protect a right of a party to an action or proceeding in such court.' The contempt power of a court of chancery has often been used to enforce obedience to its decrees. . . . State ex rel. Edwards v. Davis (1892) 2 N. D.

461, 51 N. W. 942. . . . Indeed, that was the only method of enforcing chancery decrees until the sequestration of property was introduced in chancery. The contempt

It

charged is a civil contempt, and the plaintiff invokes the exercise of the power of the court for the purpose of enforcing a decree in his favor. Section 5937, Rev. Code, relating to the practice in contempt cases, declares: 'An order to show cause may be made in the action or proceeding in or respecting which the offense was committed, either before or after the final judgment or order therein, and is equivalent to a notice of motion; and the subsequent proceedings thereupon shall be taken in the action or proceedings as upon a motion made therein. In case an attachment is issued it shall be deemed an original special proceeding by the state as plaintiff against the accused as defendant.' This provision relieves us in this case of all embarrassment as to the nature of the proceeding. is neither an action nor a special proceeding. It is simply a motion in an action after judgment. The provision first appears in this state in the Revision of 1895. It was enacted after the decision in State ex rel. Edwards v. Davis (N. D.) supra, and doubtless to settle certain questions there discussed. The matter being treated as a motion in the action made after judgment, it follows that the order dismissing the proceeding is a final order, made upon a summary application in an action after judgment; and, as the order clearly affects a substantial right, it is specifically declared appealable by subdivision 2 of § 5626, Rev. Codes. Nor do we think this provision suspended or inoperative by reason of the provisions of $ 5954, Rev. Codes, found in the Contempt Practice Act. That section gives an accused party who has been adjudged guilty of contempt a right of appeal in both civil and criminal contempts. But we do not think it was intended thereby to exclude all other appeals in connection with contempt. Before that statute was enacted, this court had held in the Davis

Case that an accused person adjudged guilty of a criminal contempt had no right of appeal. It was a muchmooted question. The statute was, we think, enacted to establish a contrary rule to that announced in the Davis Case, but we do not think it ever entered the legislative mind to suspend a portion of the general appeal law in civil cases. We hold the order appealable."

The North Dakota statute confers no authority on the appellate court to try the proceeding anew, and an appeal is limited to a review of the record for the correction of errors. Noble Twp. v. Aasen (1901) 10 N. D. 264, 86 N. W. 742, wherein the court said: "Upon this record it is contended here that this court is without authority either to try the entire case anew, or any issue of fact in the case; and the further contention is made that, on account of an alleged insufficiency of the specifications in the statement, this court cannot, under the statute, proceed to inquire whether the findings of facts are justified by the evidence. These contentions of counsel present important questions of procedure, which have never before been passed upon by this court in a contempt case; and, with a view of settling the practices in such cases, it becomes necessary to put a construction upon § 5954 of the Rev. Codes of 1899, which is as follows: 'Appeals may be taken to the supreme court from any final order adjudging the accused guilty of contempt, and upon such appeal the supreme court may review all the proceedings had and affidavits and other proof introduced by or against the accused. For the purpose of reviewing questions as to the sufficiency of the evidence, a statement of the case may be prepared and settled within the time and in the manner provided in article 8 of chapter 10 of this Code. Such appeal shall be taken, except as in this section otherwise provided, in the manner prescribed in chapter 14 of this Code.' We remark, first, that, in the absence of legislation, it is very difficult to determine upon authority precisely what matters may be considered by a

court of review in passing upon a conviction for contempt of court committed in an inferior tribunal. See 4 Enc. Pl. & Pr. p. 809. In the light of this conflict of authority, we may safely say that the section of the Rev. Codes above quoted was primarily intended to settle the question in this state, and that the same is disposed of by the declaration that 'upon such appeal the supreme court may review all the proceedings had and affidavits and other proofs introduced by or against the accused.' But in what form are the evidence and the procedure had and taken in the court below to be presented to this court? The statute furnishes an answer. It declares: 'For the purposes of reviewing questions as to the sufficiency of the evidence, a statement of the case may be prepared and settled within the time and in the manner provided in article 8 of chapter 10 of this Code.' The article referred to defines a statement of the case, and prescribes the time and manner of its preparation, and includes a careful enumeration of the elements entering into the same. A statement may contain the whole evidence, or a part thereof. It may embrace specification of errors of law, or of particulars in which the evidence is insufficient to justify findings of fact. In brief, the article referred to in § 5954 is pointed out as the particular law which governs the preparation of a statement in all contempt cases arising under chap. 33, Code of Civil Procedure, in which the appellant desires the supreme court to review questions 'as to the sufficiency of the evidence.' In such cases, therefore, where a review of the evidence is sought, the statement must specify 'the particulars in which the evidence is alleged to be insufficient to justify the decision.' Section 5630 does not apply in contempt cases. This is obvious, first, from the fact that a contempt matter, whether civil or criminal, is not an action, in the proper sense of that term; neither is it a proceeding in which an issue of fact is necessarily joined, although such issue may be joined in a contempt

case. Nor is there any language in the statute regulating the procedure in contempt cases, which directs this court to retry any issue of fact anew. This court has frequently held, in construing § 5630, supra, that it derives its authority to sit as a trial court solely from that section, and that it will refuse to try any case anew which does not fall within the provisions of that section."

The Oregon statute (§ 684 of the Oregon Laws B. & C. Comp. § 676) con.fers on either party the right of appeal from a judgment of contempt, to be taken in a like manner and with like effect as from a judgment in an action. State ex rel. Twiner v. Gray (1902) 42 Or. 261, 70 Pac. 904, 71 Pac. 978.

In Utah, under § 3632 Comp. Laws 1888, providing that "a judgment or order in a civil action, except when expressly made final, may be reviewed as prescribed in this Code, and not otherwise," and § 3635, subd. 1, which provides that "an appeal may be taken from a final judgment in an action or special proceeding commenced in the court in which the same is rendered," it has been held that a contempt proceeding for the purpose of punishing the violation of an injunction is a proceeding for a civil contempt, and is appealable. See Ex parte Whitmore (1894) 9 Utah, 441, 35 Pac. 524.

The Virginia statute (Va. Code 1904, 4053) provides that "to a judgment for a contempt of court, other than for the nonperformance of, or disobedience to, a judgment, decree, or order, a writ of error shall lie to the supreme court of appeals." See Forbes v. State Council J. O. U. A. M. (1908) 107 Va. 853, 60 S. E. 81, wherein the court said: "The theory upon which § 4053 rests, in providing that a writ of error shall lie to this court to all judgments for contempt other than for the nonperformance of, or disobedience to, a judgment, decree, or order, seems to be that in such case the parties to the cause should either appeal from the judgment, decree, or order, if they felt aggrieved by it, or, if it was a lawful decree of order, it should be obeyed."

In Washington it is provided in the chapter on contempts and their punishments, Bal. Code, § 5811 (P. C. § 1480), that an appeal will lie "in like manner and with like effect as from judgment in an action." Under this statute an order adjudging a person in contempt for the violation of an injunction is appealable. Drainage Dist. v. Costello (1909) 53 Wash. 67, 101 Pac. 497. But where a third person violates an injunctive order, a judgment of contempt thereon cannot be reviewed on appeal by the parties to the main case out of which the contempt arose. Eastern Outfitting Co. v. Manheim (1910) 59 Wash. 428, 35 L.R.A. (N.S.) 251, 110 Pac. 23.

In Wisconsin, under a statute (Taylor's Stat. 1635, § 11) authorizing an appeal from "a final order affecting a substantial right, made in special proceedings," a contempt proceeding brought primarily in the interest of an aggrieved party for the purpose of enforcing obedience to an injunction is a civil proceeding and appealable. Vilter Mfg. Co. V. Humphrey (1907) 132 Wis. 587, 13 L.R.A. (N.S.) 591, 112 N. W. 1095.

The Wyoming statute (Rev. Stat. § 3126) allowing a review of an order affecting a substantial right made in a special proceeding applies to a contempt decree made for the violation of an injunction. Laramie Nat. Bank v. Steinhoff (1898) 7 Wyo. 464, 53 Pac. 299; Porter v. State (1907) 16 Wyo. 131, 92 Pac. 385. In Laramie Nat. Bank v. Steinhoff (Wyo.) supra, the court said: "The statute is clearly remedial in character, and the order made in a contempt proceeding authorized by its provisions is one which affects a substantial right, and is made in a special proceeding and upon a summary application in an action after judgment, when it is made after and in aid of a final judgment or decree. The order is therefore a final one, expressly reviewable by authority of the statute."

The rule allowing an appeal in a proceeding for a civil contempt has been held to be limited to final judgments, and not to extend to an interlocutory decision. Costilla Land

& Invest. Co. v. Allen (1910) 15 N. M. 528, 110 Pac. 847; Buel v. Street (1812) 9 Johns. (N. Y.) 443; Watrous v Kearney (1880) 79 N. Y. 496; Vilter Mfg. Co. v. Humphrey (1907) 132 Wis. 587, 13 L.R.A. (N.S.) 591, 112 N. W. 1095; Laramie Nat. Bank v. Steinhoff (1898) 7 Wyo. 464, 53 Pac. 299. See also Nutt v. State (1909) 95 Miss. 422, 49 So. 145; Merchant v. Pielke (1900) 9 N. D. 245, 85 N. W. 18; Ex parte Whitmore (1894) 9 Utah, 441, 35 Pac. 524.

Thus, it was said in Costilla Land & Invest. Co. v. Allen (N. M.) supra: "The motion to dismiss the appeal proceeds upon the ground that the action of the court in fining the defendants for contempt is not appealable. It is argued that if the contempt proceedings be deemed criminal and punitive in their nature no appeal lies, since it was held by this court in Marinan v. Baker (1904) 12 N. M. 451, 78 Pac. 531, that under Comp. Laws, § 3406, there is no right of appeal in a criminal case except 'from a final judgment rendered upon an indictment;' and, on the other hand, if a civil and remedial proceeding, that the decision rendered was interlocutory and not final, and thus not appealable under Jung v. Myer (1902) 11 N. M. 379, 68 Pac. 933, which declares that under the organic act appeals are permitted only from final decisions. These contentions involve a determination by us of whether the proceeding is criminal or civil, for if the former the appeal is clearly not maintainable under Marinan v. Baker (N. M.) supra. Before proceeding

to the consideration of the main question, there is to be dealt with the contention of appellant, that Marinan v. Baker is not in point, because our statutes regulating appeals have been changed since that decision. We find no basis for this claim, however. Chapter 57 of the Laws of 1907, entitled 'An Act Providing Appellate Procedure in Civil and Criminal Cases,' by its § 47, simply re-enacts, but does not in the slightest change, Comp. Laws, § 3406, supra, which was the controlling statute in Marinan v. Baker, and which, as we have seen,

limits appeals in criminal cases to final judgments rendered upon indictments. Neither does § 1 of the act of 1907, upon which appellant specially relies as changing the status, have that effect, since it is an exact copy of § 161 of the Civil Code, in force when the Marinan Case was decided, and for the further reason that it applies only to civil cases, as witness the following language: 'Any person aggrieved by any final judgment or decision of any district court in any civil case may, at his election, take an appeal or sue out a writ of error,' etc. Deeming Marinan v. Baker controlling authority, if the decision complained of be for a criminal contempt, we proceed to determine whether such was criminal or civil, and, if the latter, whether the action of the trial court was interlocutory or final. The border line between what may be termed civil and what criminal contempt is, as has been pointed out by many authorities, exceedingly indistinct and narrow, leaving it often a question of extreme refinement as to whether the act was one or the other. Of course all judgments for contempt are, in a sense, punitive, since the sentence imposed, even if simply to preserve private rights and even if the so-called fine go to the litigant purely by way of reimbursement, has the effect to punish the recalcitrant and to declare the purpose of the court that its orders shall not be trifled with. The authorities, however, draw a distinction between those contempts where the protection of the court and a vindication of its dignity are the main objects of the proceeding, and those where a more effective remedy to private litigants is, after all, the purpose of what is done. . Among the indicia of criminal contempt, which have been deemed controlling in doubtful cases, are whether the respondent is or is not a party to the suit, whether the cause has gone to final decree, whether the punishment imposed is fine or imprisonment, and, if a fine, whether it is paid to the adverse litigant or to the public. . . . The only case in this court dealing with this question

is Marinan v. Baker (N. M.) supra. There the defendants, who were parties to the original suit, had been proceeded against after final decree for violating the injunctive features of that decree, and, in punishment, committed to the county jail. The court held the contempt a criminal one; and very properly so, . . . since after final decree, and especially so, under Re Christensen Engineering Co. (1904) 194 U. S. 458, 48 L. ed. 1072, 24 Sup. Ct. Rep. 729, since, as there remarked, a jail sentence is manifestly punitive rather than 'remedial or compensatory.' Comparing the present case with those above outlined,

we are of opinion that the contempt here dealt with was civil rather than criminal. The defendants were parties to the suit, the fine was imposed prior to final decree, the fine went not to the public, but to the plaintiff. . . . We hold, therefore, that the contempt here punished was civil, and not criminal, and that the case is not ruled by Marinan v. Baker, supra. The motion to dismiss must, therefore, as to this ground, be overruled. It remains to be declared whether the decision appealed from was interlocutory or final. We deem it settled by the controlling authority that it is the former. In Hayes v. Fischer (1879) 102 U. S. 122, 26 L. ed. 96, the defendant was ordered to pay the clerk $1,389.99 as a fine for violating an interlocutory judgment, to stand committed until the order was obeyed. The court sajd (the italics ours): 'If the order complained of is to be treated as part of what was done in the original suit it cannot be brought here for review by writ of error. Errors in equity suits can only be corrected in this court on appeal, and that after a final decrec. This order, if part of the proceedings in the suit, was interlocutory only.' In Worden v. Searls (1887) 121 U. S. 14, 26, 30 L. ed. 853, 857, 7 Sup. Ct. Rep. 814, which, as we have seen, was a case of civil contempt, the court, upon appeal from the final decree in the cause, treated the orders fining the defendant as interlocutory and as made 'in the

course of the cause, based on the questions involved as to the legal rights of the parties.' Considering them as such, the court said: 'Although the court had jurisdiction of the suit and of the parties, the order for the preliminary injunction was unwarranted as a matter of law and the orders imposing the fines must, sc far as they have not been executed, be held, under the special circumstances of this case, to be reviewable by this court, under the appeal from the final decree. The result is that they cannot be upheld.' That the view above expressed as to the purport of these authorities is correct is shown by Re Christensen Engineering Co. (1904) 194 U. S. 458, 460, 48 L. ed. 1072, 1074, 24 Sup. Ct. Rep. 729, where, after referring to these and other cases, it is said: "These authorities show that when an order imposing a fine for violation of an injunction is subsequently one to reimburse the party injured by the disobedience, although called one in a contempt proceeding, it is to be regarded as merely an interlocutory order, and to be reviewed only on appeal from the final decree.' We hold, therefore, that the present appeal must be dismissed because prosecuted from an interlocutory, not a final, decision."

So, in New York an order adjudging a person in contempt for violating an injunction can only be appealed on the merits, or on alleged legal errors, from the final order. Watrous v. Kearney (1880) 79 N. Y. 496.

And see also Naturita Canal & Reservoir Co. v. People (1902) 30 Colo. 407, 70 Pac. 691, wherein the offense for which the defendant was adjudged guilty of contempt does not appear. The court said: "We avail ourselves of this, the first opportunity to announce for this court, in reviewing civil contempts, the same rule that applies to its review, by writ of error, of other final judgments in civil actions. Although, when the necessary jurisdictional fact appears, the supreme court may, by a writ of error, review final judg