statement of continuous frivolous objections, amounting to an obstruction of the orderly progress of a trial, or that if, after having accomplished that which is deemed duteous, viz., the statement of his exception, counsel remain standing after a request to be seated, in a manner such as to affront the court, that these might not be contemptu

ous; but we do not think relator's conduct falls in either class.

Concluding under the facts that what was deemed contemptuous by the learned trial judge was not so in fact or intent, we must hold the judgment one which he had no power to enter, and therefore direct the discharge of the relator, and it is so ordered.

For affidavit to disqualify judge as contempt, see annotation in 29 A.L.R. 1273.

It appears that the reported case (EX PARTE CRENSHAW, ante, 1181) is the first to pass directly upon the specific point therein decided.

v.

In People ex rel. Beinstein LaFetra (1916) 171 App. Div. 269, 157 N. Y. Supp. 386, where an attorney was committed "for delaying, impairing, and impeding the orderly disposition of the trial, although plaintiff's interests had been amply protected by numerous exceptions," the court, in reversing the order of commitment because the mandate did not sufficiently set forth the particular circumstances of the offense as required by statute, and because such specific charges as were set forth did not constitute contempt, said: "An adherence by respondent (a justice of the city court) to his views upon that subject would inevitably lead, as it did in the end, to a dismissal of the complaint; and the only hope that relator could entertain of ultimately succeeding in the action was to make the appropriate objections and take the necessary exceptions to preserve his client's rights upon an appeal. In doing this he was clearly within his rights, provided he comported himself with due regard to the dignity and authority of the tribunal before which he was appearing."

In Platnauer v. Superior Ct. (1917) 32 Cal. App. 463, 163 Pac. 237, where the trial court arbitrarily ordered that a certain licensed attorney, regularly 31 A.L.R.-75.

employed, should refrain from further active participation in the case before it, the court, in holding that such order was illegal, and that further attempts on the part of the attorney to participate did not constitute contempt, despite the order, when made in a respectful manner, said: "A lawyer, when engaged in the trial of a case, is not only vested with the right, but, under his oath as such officer of the court, is charged with the duty, of safeguarding the interests, of his client in the trial of an issue involving such interests. For this purpose, in a trial, it is his sworn duty, when the cause requires it, to offer testimony in behalf of his client, or in support of his case, in accordance with his theory of the case, to object to testimony offered by his adversary, to interrogate witnesses, and to present and argue to the court his objections or points touching the legal propriety or impropriety of the testimony, or of particular questions propounded to the witnesses. If, in discharging this duty, he happens to be persistent or vehement, or both, in the presentation of his points, he is still, nevertheless, within his legitimate rights as an attorney, so long as his language is not offensive or in contravention of the common rules of decorum and propriety. As well may be expected in forensic polemics, he cannot always be right, and may wholly be wrong, in his position upon the legal question under argument, and to the mind of the court so plainly wrong that the latter may conceive

that it requires no enlightenment from the argument of counsel. But, whether right or wrong, he has the right to an opportunity to present his theory of the case on any occasion where the exigency of the pending point, in his judgment, requires or justifies it."

In the Platnauer Case (Cal.) supra, the immediate occasion for the contempt proceedings was a suggestion on the part of the attorney ordered to refrain from further participation that no showing had been made that the ballots to be recounted were in the same condition as when received, and his objection to their consideration until such a showing had been made. It was not contended that the attorney's language or manner was disrespectful, "and, as declared, it was alone the persistency of the petitioner to be heard in behalf of his client, of whom he was the senior counsel, which brought forth the judgment and order of commitment for contempt."

In Re Shortridge (1907) 5 Cal. App. 371, 90 Pac. 478, it was held that an attorney for a party to an action pending before the court is not guilty of contempt in persisting, while a witness is being examined, in addressing the court, presumably in behalf of a client, although admonished not to do so.

Said the court. "For aught that we can see from the order, the petitioner may have been rightfully and respectfully discharging his duty to the court and to his client, making proper objections to the questions put to the witness on the stand. What he said to the court is not set forth, nor are any circumstances set forth making it improper for him to address the court in a respectful manner, except the bare order of the court not to do so. This we do not think is sufficient, any more than is the order to a witness to answer a question sufficient, without an affirmative showing in the order of commitment that the question is one that the witness should answer." The court said, however, that, had it appeared that the purpose of the attorney was to address the court in be

half of a fugitive client, his persistence, after order of the court to stop, would have been punishable as contempt.

In Hill v. Crandall (1869) 52 Ill. 70, where a justice of the peace was hearing a motion for continuance of a cause pending before him, it was held contempt for an attorney wil fully to resist the motion after the court had given notice that the same had been granted, and to refuse to cease, as ordered by the justice, saying to the latter: "You can fine and be damned." Said the court: "That the plaintiff in this case . . was guilty of contempt in open court admits of no controversy, and the magistrate would have himself been censurable if he had failed to punish. The use of such indecorous language to a court as is set forth in this record would be inexcusable in anyone, and is least excusable in an attorney at law, whose profession should be a sufficient guaranty of respectful deportment to even the humblest judicial tribunal."

"I

In Holman V. State (1886) 105 Ind. 513, 5 N. E. 556, the appellant, as attorney, propounded a question to a witness, to which an objection was sustained by the court; after the ruling was announced, the appellant rose to his feet and insisted upon making an argument on the question ruled upon; upon the court's request that he sit down, as arguments were not then in order, the appellant "peremptorily, and in the most defiant manner," declared that he would not obey the request of the court, and said: will stand here while it suits me to do so;" and again, later, as he passed in front of the judge's bench: "I will get even with you." Such conduct was held contempt, though the judge himself may have been wrong and may have made an ill-tempered and undignified remark in ruling upon the objection. The court said: "It is a matter of regret that a judge should manifest bad temper while on the bench, or rudely treat counsel, but the wrong of the judge cannot excuse the misconduct of counsel. It is often necessary for a judge to be

stern and determined, but it is never necessary to be ill-tempered or discourteous. Even if we should adopt appellant's theory that the judge was in the wrong, still we cannot assent to the conclusion that he was not himself guilty of a contempt, for the ill temper or harshness of the judge will not excuse a positive disobedience of the orders of the court, or a contemptuous disregard of its authority."

In Mahoney v. State (1904) 33 Ind. App. 655, 104 Am. St. Rep. 276, 72 N. E. 151, the attorney for the defendant in a criminal action, after the court had overruled an objection made by him, commenced to argue the question, and when the court stated that the ruling had been made, and that it desired no further argument, said to the court in a loud and offensive manner: "I want to know whether I am going to be heard in this case in the interest of my client or not." Afterwards, during the examination of a witness, the court remarked that the witness had already answered the question put by the attorney, whereupon the latter referred to the reporter, saying: "I want to see whether the court is right or not;" and again, when the court had ruled upon the admission of certain evidence over the objection of the attorney, he stated that there was no principle of law that would support such a proposition, and there was no reason in it. For these and other insults of like kind, the attorney was ined $50 for direct contempt of court. The judgment was appealed, but only upon the ground that the fine was not imposed through proper legal procedure.

In Re Mindes (1915) 88 N. J. L. 117, 95 Atl. 743, it was held that neither his duty as an officer of the court nor his duty to his client requires an attorney to condemn the court's ruling and to persist in refusing to obey it; and that the conduct of an attorney in indulging in invective and scandalous innuendo that tended to degrade and humiliate the court, when the court expressed a desire to hear no further argument at that time, was contempt. The court

said: "Manifestly, therefore, it was the appellant's duty to accept the ruling of the court as final, and, if he desired to challenge its legal correctness, to do so by an appeal or by such other method as the law provided, in order to obtain the redress he solicited. His duty to his client was equally obvious. It did not consist in 'throwing up his brief,' to use an expression of the common-law lawyers, when the court failed to accept his view of the case. Nor did it consist in challenging the court to accept the view he maintained, and protesting as an alternative that he never would cross the portals of the court again.. Other avenues of re

dress were open to him, and higher courts existed to correct its legal errors. Knowledge of these facts we must assume the appellant possessed, and that situation renders his conduct, upon his own showing, inexcusable."

In State v. Leftwich (1889) 41 Minn. 42, 42 N. W. 598, it was held that while counsel trying a case may except to the rulings and orders of the court, he is bound to respect and obey them; and that, if, after the court has ruled against a particular course of examination of a witness, he still persists in the same course of examination, he may be guilty of a contempt. The court said: "The relator, having presented the question of his right to follow that course and got a ruling upon it, ought, if he deemed the ruling erroneous, to have taken his exception, and afterwards conformed to the course indicated by the ruling. He had no right to attempt to evade it. As to that it is immaterial whether the ruling was or was not erroneous."

In Dodge v. State (1895) 140 Ind. 284, 39 N. E. 745, the defendant, an attorney, in the voir dire examination of a juror, after asking the juror a question which the court directed not to be asked again, characterizing the same as absurd, defiantly put the same question again to the juror, and, upon being rebuked by the judge, said to him: "If that language was used towards me on the street I would

know how to answer it, but here in court I cannot." Such conduct and language were held a contempt. The court said: "The contention of appellant that the language of the judge was provoking, and also detrimental to the interest of his client, and hence he ought to be excused for his conduct, can have no weight or consideration from a legal standpoint. The wrong of the judge, if any, cannot justify the misconduct of counsel. Holman v. State (Ind.) supra. It is the imperative duty of an attorney to respectfully yield to the ruling and decisions of the court, whether right or wrong, reserving the rights of his client by proper and necessary exceptions thereto."

While it is the right and duty of counsel to make necessary objections and take necessary exceptions, it was held in State ex rel. Cary v. District Ct. (1910) 110 Minn. 446, 125 N. W. 1020, that for an attorney persistently to resort to a frivolous method of objections and motions, the evident purpose of which is to interrupt and delay the trial, and to use insulting language towards opposing counsel, and to adopt a defiant attitude when called upon to show cause, was contempt for which a penalty might be inflicted.

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In Redman v. State (1867) 28 Ind. 205, where, during the trial of a criminal case, one of the defendant's attorneys having his questions upon cross-examination ruled out as improper, it was held that for the at-, torney to reply, "This is a crossexamination, and if we cannot examine our witness he can stand aside," was sufficiently offensive and disrespectful to warrant the court in refusing the attorney the right to ask further questions, where his associates were ordered to conduct the cross-examination instead. The court was not called upon to decide whether or not such conduct was criminal contempt for which the attorney might be punished, but it said: "The remark made by the attorney in this case might readily be construed as a direct reflection upon the impartiality of the court, and was so under

stood. It was out of place, uncalledfor, and neither justified nor excused by the ruling of the court, and when notified that it was regarded as offensive, no disclaimer of such an intention was made by the attorney."

In Russell V. French (1885) 67 Iowa, 102, 24 N. W. 741, one of the attorneys asked a witness a question to which objection was made by opposing counsel on the ground that the question had been already answered, and thereupon the court, after hearing the prior questions and answers read by the shorthand reporter, announced his decision sustaining the objection, and stating that the question had been already answered. Immediately upon such ruling the attorney sprang to his feet, and, turning to the court, said in loud tones and with insulting manner, "She has not answered the question." Such conduct was held contempt of court, though the question may not have been answered. The court said: "When the court made the ruling it did, whether right or wrong, the plaintiff should either have submitted thereto, taken an exception, and had the error, if it was one, corrected on appeal, or in respectful language and manner have addressed the court and asked to have the ruling reconsidered; but, if the court declined to hear him, the plaintiff should have acquiesced therein. The time for argument is before the decision. Counsel then have the right to insist on being heard. When a decision has been made, the time for argument has passed, unless permission of the court is asked and obtained. Of course, it will be understood, if the right to a rehearing exists and is asked, the right to make an argument would seem to be apparent; but even in such case the court in its discretion might decline to hear the argument. Instead of taking this course, or one approximating thereto, the plaintiff, as the court thought, in 'loud tones and insulting manner,' directly contradicted a statement of fact made by the court, and upon which the decision was based. We therefore feel con

strained to say that such conduct was contemptuous, and had a tendency to impair the respect due to the authority of the court. If the plaintiff believed the statement made by the court to be incorrect, and he deemed it material for the interest of his client to have it corrected and the decision changed, he should, in respectful language, have called the attention to what he deemed to be the mistake. It is quite apparent he did not do this, but that, at least, he sprang to his feet and in unequivocal language directly contraIdicted what the court said. Whether the plaintiff's manner was insulting we are unable to say; but that we must assume it to have been so we have no doubt. The plaintiff, as we understand, claims that he in point of fact was right and the court wrong, the contention of the plaintiff being that the question asked the witness had been evasively and not directly answered, and he seeks to so show by the affidavits filed by him. We think it is immaterial how this may be. Conceding that he is correct in this respect, still we do not think he was justified in addressing the court as he did."

In State v. Garland (1873) 25 La. Ann. 532, the defendant, an attorney at law, persisted in interrupting the court while opinions were being read, and for such conduct was fined for contempt of court. It was held that for the attorney to use abusive language toward the judge and to commit an assault upon his person during a recess, but before adjournment, under pretext of resenting the words and acts of the judge while on the bench, was a contempt of court. It was further said that an attempt by answer to justify such conduct is an aggravation of the contempt.

In Re Cooper (1859) 32 Vt. 258, where, after deciding deciding a question raised by counsel, the justice of the peace trying the case turned to the relator and remarked, "It might be convenient enough for you, Mr. Cooper, to have the supreme court sit here all the time," it was held

contempt for the relator to reply, "I don't think that is necessary, for I think this magistrate wiser than the supreme court," the words being used in an ironical sense, and intended as sarcasm; and it mattered not that relator acted under a misapprehension as to the powers of the justice to punish for contempt. Speaking of the use of irony and sarcasm, the court said: "This is entirely allowable towards those standing in relations of equality, where no obedience or submission is due. But in those relations where the law, for any cause, requires submission and obedience, the case is different. In the relation of parent and child, or teacher and pupil, or the court and its bar, the decisions of the superior, for the time being, are final and are to be respected, whether wise or foolish in fact. And they cannot be encountered with sneers and sarcasm, however just and appropriate the weapon may seem to those who use it, or to others."

In Ex parte Bullington (1912) 66 Tex. Crim. Rep. 256, 145 S. W. 1190, it was held that a lawyer has a right in his argument to state to the jury his theory of the law and to argue whether or not the evidence would render his client liable, and that, this being so, the conduct of the attorney in insisting upon his right to argue the law as applicable to the facts, despite the order of the court, was not contempt of court.

In Ex parte Winn (1912) 105 Ark. 190, 150 S. W. 399, the judge had on a prior occasion, and in the absence of the petitioner, an attorney, announced from the bench the latter's suspension from the practice of law. On the morning of the occasion complained of the attorney appeared in court, took his seat inside the rail, and was ordered from the court room when the judge observed his presence. It was held that the attorney was not guilty of contempt in immediately rising and explaining to the court that he desired a hearing, where the evidence showed that neither the manner nor the conduct of the attorney was disrespectful to the court.