The case of Ex parte Bankhead, 200 Ala. 102, 75 So. 478, relied upon by the majority of the Justices, was decided in 1917. It is true that in that case it was held that the trial court had jurisdiction. It is also true that there was no affidavit filed in that case. But this fact appears only from an examination of the original transcript. It does not appear in the opinion of this court that the same conclusion would have been reached if the absence of the affidavit had been called to the court's attention. Hence, I do not think that case is controlling here.
In 1924 the Court of Appeals, in the case of Robertson v. State, 20 Ala. App. 514, 104 So. 561, in an opinion by Presiding Judge Bricken, wherein the authorities on this subject are reviewed, held that proceedings in a constructive contempt case must be begun by affidavit and that in the absence of an affidavit the court is without jurisdiction although a rule nisi has been issued. This court did not review the decision of the Court of Appeals in that case.
In 1929 in the case of Craddock et al. v. Oliver, 23 Ala. App. 183,123 So. 87, the Court of Appeals followed the decision of that court in Robertson v. State, supra, holding:
"This rule nisi in cases of constructive contempt of a criminal nature must be based upon a sufficient information or affidavit, setting forth in general terms the acts complained of and this initiatory information or affidavit is jurisdictional. 13 Cyc. 64, 89, note 82.
"Although there are some authorities to the contrary, the best authority is to the effect that in cases involving constructive criminal contempt a formal accusation is essential. Such accusation takes the place of an indictment or information in a criminal case and must be sworn to by some person having knowledge of the fact. * * *"
This court denied certiorari in the Craddock case, supra,219 Ala. 607, 123 So. 88.
There is no doubt of the fact that the conclusions reached by the Court of Appeals in the cases heretofore cited are in accord with the great weight of authority in this country. 17 C.J.S., Contempt, § 83.
I am of the opinion that since there was no affidavit filed in this case setting forth in general terms the facts upon which the alleged contempt was based, the trial court *Page 15 did not have jurisdiction to proceed in this matter.
Since the court did not have jurisdiction, it is my opinion that the failure of the offending party to make any objection to the absence of an affidavit did not constitute a waiver of that defect.