though there is later a determination of lack of jurisdiction, an injunction has the force of law during its pendency
How later courts described this case
- though there is later a determination of lack of jurisdiction, an injunction has the force of law during its pendency
- “[Ejxcept in case of plain usurpation, a court has jurisdiction to determine its own jurisdiction.”
Written by the judges who cited it.
The opinion
On Motion for Rehearing.
PER CURIAM.
The motion for rehearing urges that the judgment appealed from is unlawful in that it imposes a fine of $1,000 and imprisonment for six months, although the statute authorizing punishment for con-tempts, Judicial Code § 268, 28 U.S.C.A. § 385 , permits only fine or imprisonment. This was not made a ground of appeal, nor was it assigned as error. It is, however, of so fundamental a character as to demand our attention. We accordingly grant a rehearing on this point, and having had briefs from both parties, on the authority of In re Bradley, 63 S.Ct. 470 , 87 L.Ed. —, decided Feb. 1, 1943, we hold the sentence to be erroneous. It is true that the evidence discloses more than one act of contempt, and if two acts had been separately prosecuted and guilt found as to each, one of them might have been punished by fine and one by imprisonment. Hoffman v. United States, 7 Cir., 13 F.2d 278 . But here there was only one general charge of contempt, one verdict of guilt, and one judgment.
It is further urged in Carter’s brief that the fine has been paid, and that appellant is entitled to be discharged under the Bradley case. It does not appear from the record on appeal that the fine has been paid, so we have no occasion, to decide the effect of a payment.
The judgment of affirmance hitherto rendered is set aside, and for the error above pointed out the judgment appealed from is reversed, and the cause is remanded to the District Court for such further proceedings as are lawful.