State v. Clark

1952-NMSC-023, 56 N.M. 123, 241 P.2d 328

 

RULE:

In order to initiate proceedings in the nature of civil contempt, committed outside the presence of the court, that is, constructive contempt, there must be an affidavit filed setting forth the acts constituting such contemptuous conduct. The filing of such affidavit initiates the proceeding and gives to the court jurisdiction to hear and determine the same. 

FACTS:

After the injunction issued, the State filed a motion asking that the district court cite the madam for contempt of court for a claimed violation of the injunction. The motion was not verified because it was unaccompanied by an affidavit. The district court directed the madam to show cause. She filed a motion that challenged jurisdiction on the ground that the State's motion was not verified. Accordingly, she claimed that the order to show cause was a nullity. Over the madam's objection, the district court heard testimony offered by the State. The district court then granted the State permission to subsequently verify the motion and found the madam in contempt.

ISSUE:

Can a charge for civil contempt be properly filed without being set forth in a verified affidavit?

ANSWER:

No

CONCLUSION:

The Court held that where a contemptuous act was committed outside a court's presence, an affidavit setting forth the acts constituting contemptuous conduct was required in civil contempt proceedings. Thus, the State's subsequent verification did not relate back to the initial filing date of the unverified motion for an order to show cause. The trial and judgment were nullities for lack of jurisdiction. However, the court did note that verified motions citing a defendant's acts were not required if such contemptuous acts were committed in a court's presence. 

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