On Rehearing
BRATTON, J.In our original opinion herein, we held that the only act shown in the record which constituted a violation of the order of injunction in question was the partial construction of a large earthen tank across the section line and roadway described in such former opinion. • We further held that there was substantial evidence that such earthen tank had been partially constructed across such roadway, and hence we affirmed the judgment of the lower court.
It is now, upon a motion for rehearing, called to our attention for the first time that the affidavit charging contempt was filed on January 26, 1921, and that the construction of the tank in question was not begun until a later or subsequent date, to wit, the 2nd or 3d days of February, 1921, which facts are affirmatively shown by the record. It is now contended by the appellant that the construction of the tank, although litigated by the parties, cannot support the judgment, because it was not charged in the affidavit as an act constituting such contempt. The affidavit contained certain specific charges with regard to the completion of the house and windmill, and, further, that the roadway had been otherwise obstructed. It is manifest, however, that the construction of the tank, which began thereafter, could not have been included in such a general charge. We then have a case where the only act of contempt which is shown by the record is affirmatively shown to have occurred after the contempt proceedings had been instituted by filing the affidavit, upon which appellant was afterwards tried and adjudged to be guilty.
It is the general rule among American courts, and is the declared law of this state, that in order to initiate proceedings in the nature of civil contempt, committed without the presence of the court, that is, constructive contempt, there must be filed an affidavit 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. This was expressly held by this court in the case of In re Fullen, 17 N. M. 394, 128 Pac. 64. The affidavit which was involved in that case charged the petitioner with contempt for failure to bring a minor child, Rosemary, within the jurisdiction of the court. Upon the trial she was adjudged to be in contempt for spiriting her son, William, away. The court held the conviction to be void for lack of jurisdiction, in that the affidavit by which the proceeding was initiated did not charge her with that act of contempt. It is there said:
“It does not appear that the affidavit in the case at bar charged anything with respect to William Bowman Pullen, or that the accused was in any way advised of the charges referred to. We are therefore unable to hold that the order of commitment, based upon the alleged spiriting- away of the child, William Bowman Pullen, was valid, but on the contrary must hold that the order was without jurisdiction and, therefore, void.”
The principle declared there is controlling here. The affidavit in question not including the construction of the tank as an act of contempt, the court was without power to adjudge the appellant guilty upon such an act, and that being the only act shown in the record which violated the terms of the injunction, it follows that the judgment must be reversed, and the cause remanded, with directions to set aside such judgment and to discharge the appellant, and it is so ordered.
PARKER, C. J., and BOTTS, J., concur.