Holstein v. Rice — 15 Abb. Pr. 307

Majority

p. 307

HOLSTEIN a. RICE.

Supreme Court, Third District; General Term,

May, 1862.

Headnote

Contempt in Supplementary Proceedings.—Abatement by Change of Officer.

An order dismissing proceedings to enforce a civil remedy by attachment for contempt,—e. g., to compel the appearance of the defendant for examination, supplementary to judgment under § 292 of the Code of Procedure,—is appealable, as affecting a substantial right. The attachment is a proceeding to enforce the plaintiff’s right and to collect his judgment.^[2]

Supplementary proceedings under the provisions of the Code of Procedure, taken before a county judge, and proceedings therein to punish for a contempt by a fine for the benefit of the party, do not abate upon the expiration of his term of office, but may be continued before his successor. 1. If such proceedings are considered as a part of the orderly progression of the action itself, as they may properly be regarded, the death or expiration of the officer before whom they are conducted,

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ought not to affect the proceedings. 2. If, however, they are regarded as special proceedings, a liberal construction of the provision of 2 Bev. Stat., 284, § 61,—that such proceedings maybe continued, in cáse of the death, &e., of an officer, by his successor in office, or by certain other officers, &c.,—would apply it to such a case; for the expiration of the term of office may be deemed a removal from office, or as a disability, within the meaning of that section.

That provision of is proceedings cannot, with propriety, be classed under ordinary proceedings in an action. It is not confined to what are defined by the Code as special proceedings.^[2]

Whether the court have power to punish a contempt of the order of a judge, made out of court,—Query ?

Appeal from an order of a county judge, in proceedings supplementary to execution.

The plaintiff, having a judgment on which an execution against the defendant had been returned unsatisfied, applied, in 1859, to Judge Robinson, then county judge of Albany county, for an order, under section 292 of the Code, to examine the defendant in regard to his property. The order was granted, duly served, the defendant appeared, and the examination was in part had, and adjourned to a subsequent day.

On such day the defendant did not appear, and an order was issued, and duly served, to show cause why an attachment should not be issued against him. ¡¡STo cause being shown, an attachment against the defendant was issued by Judge Robinson, but failed of service on account of inability to find the defendant.

Meanwhile, on the last of December, 1859, Judge Robinson’s term of office expired, and he made an order transferring the

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unfinished business to his successor, Judge Wolford, whose term of office commenced on the 1st of January, 1860.

In 1862, Judge Wolford, on the application of the plaintiff, issued a new attachment, on the old proceeding, against the defendant, in which the latter was arrested and brought before him. Interrogatories were filed, and time given to the defendant to answer. On the day appointed for answering he appeared, and moved to dismiss the proceedings, upon the ground that the proceedings before Judge Robinson terminated with his term of office, and were not and could not be legally continued before his successor; that proceedings for contempt in disobeying of an order in supplementary proceedings, could be heard and the disobedience punished only by the judge issuing the original order, and were, in their nature, personal to that officer.

The county judge dismissed the proceedings and discharged the defendant from arrest, holding that he had no lawful jurisdiction over him.

From the order thus discharging the defendant, the plaintiff now appealed to the general term.

Lyman Tremaim, for the plaintiff.

Anson Bingham, for the defendant.

I think the order is appealable, because it defeats the plaintiff of a substantial right. The object of the proceedings before Judges Robinson and Wolford was not simply to punish the defendant for a contempt of the judge’s order, but to enforce the plaintiff’s rights and collect his judgment. The attachment was issued at the instance of the plaintiff, and was a necessary proceeding to enable him to pursue the investigation before the judge. A contumacious refusal on the part of the defendant to answer before the judge, might be punished by the imposition of a fine, fully vindicating the dignity of the tribunal for the contempt of its order of process, and fully idemnifying the prosecuting party for any pecuniary loss he had sustained thereby. (2 Rev. Stat., 536; People a. Compton, 1 Duer, 515 ; Livingston a,. Swift, MS. opinion, third district.) It is not ne

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cessary now to determine whether the fine- could equal the plaintiff’s judgment, though I do not see why it could not, if satisfactory evidence was presented to the judge that the plaintiff had sustained' that amount of loss by the contumacy ■ of the defendant.

The considerations already referred to, show that the proceedings for the attachment of the defendant had a double object, to wit: 1. For the punishment of the defendant; and 2. For the indemnity of the plaintiff and the payment of his judgment. They should not, therefore, except for imperative and insuperable objections, be permitted to fall through or fail of their object, by the accidental circumstance of the expiration of the term of office of the incumbent thereof. The ends of justice require that the continuity of the proceedings should be preserved, if possible. Row, the proceedings under section 292 and subsequent sections of the Code are either in continuation of the ordinary proceedings in the suit, and to be regarded as a part thereof, as has been held in some cases (Dresser a. Van Pelt, 15 How. Pr., 23 ; Bank of Genesee a. Spencer, Ib., 412); or else they are special proceedings, out of the ordinary course, but having the same general object in view,—to wit, the collection of the judgment,—as is held in several other cases. (Davis a. Turner, 4 How. Pr., 190 . See 2xp. Ransom, 3 Code 148; N. Y. Central R. R. Co. a. Marvin, 11 N. Y., 276 .)^[2] If they come under the first head, then it would seem as if they were properly continued before the successor in office of the officer before whom the application was originally made. And as the suit itself, in the Supreme Court, during its progress, would not abate at the death or expiration of the term of office of the justice before whom it was pending, or if he were the sole judge of the court, like the chancellor, by the death or expiration of his term of office; so the proceedings under section 292, which are in the nature of a creditor’s bill, to enforce judgment (Sale a. Lawson, 4 Sandf., 718 ), ought not to be permitted to abate by the unavoidable occurrence of an event like the expiration of the term of office of the judge before whom the proceedings were first instituted,—an event not possible to be

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always foreseen as likely to occur during the pendency of the proceedings, and one over which the parties can have no control.

The propriety of such a rule would seem to be manifest in regard to the ordinary proceedings before the judge; and if such an event occurred while the examination of the case was going on, or during an adjournment of the hearing made for the convenience of the parties, I should have very little doubt, if, as before assumed, these proceedings were to be regarded as simply successive steps in the orderly progress of the suit towards its final consummation, that the subsequent proceedings-might be appropriately pursued before the successor in office; and I have already endeavored to show that the proceedings to examine into the causes of a disobedience to the order of the judge, requiring the appearance or further examination of a party, are, in an important sense, a part of the orderly proceedings under this section of the statute, inasmuch as they have in view (besides the punishment of the offender) the collection of the plaintiff’s debt.

If these proceedings, however, are to be regarded as special in their nature—extoaordinary in their character—peculio/!' in their object, and not to be classed among the ordinary proceedings in the actions, or the ordinary methods resorted to for the consummation of those proceedings of which the summons is the first step,—then the question arises, whether, in the nature of things, or from any provisions of law, we can determine whether or not they die with the officer before whom they were commenced, or may be continued before his successor.

This question must be determined, I think, by the construction to be given to § 51, art. 2, tit. 2, ch. 3, part 3, Revised Statutes. (2 Rev. Stat., 284, 3 ed., 383.) This section provides that “in case of the death, sickness, resignation, removal from office, absence from the county of his residence, or other disability of any officer before whom any special proceedings, authorized by any statute, may have been commenced, and where no express provision is made by law for the continuance of such proceedings, the same may be continued by the successor in office of such officer, or by any other officer residing in the same county, who might have originally instituted such proceedings,” &c.

This provision being remedial in its nature, should be lib

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erally construed to effectuate the object intended. That object, apparently, was to provide for the continuance of all judicial proceedings, except those in ordinary progress of an action— which would be continued of course—and those where special provision had already been made by statute. And I think it may, without violence to its language, be so construed as to embrace the present case. In a certain sense, “removal from office” may be said to embrace the displacement, departure, or removal from office, consequent upon the expiration of the term of office of the incumbent; but more particularly, I think, the expiration of the term of office may be said to create “ a disa bility of the officer before whom any special proceedings are instituted.” If it be said that the term “ disability” means a temporary one, or one applied to a particular cause or proceeding, I answer, it cannot mean that in the present case, because the language is, “ removal from office” or “ other disability,” implying that removal from office and the permanent disqualification thereby induced, is one of the “ disabilities” to which the statute refers. So, also, it would not be .a very latitudinarian construction (in order to promote the ends of justice) to read the words, “ where no express provision is made by law for the continuance of such proceedings,” by prefacing them with the words “ in cases,” and then they would plainly embrace the present proceeding.

It is said this section is inapplicable to the case in hand, because the statute is confined to “ special proceedings,” and this is not a special proceeding under the definition of the Code. I have already referred to several cases which hold this is a special proceeding within the definition of the Code ; but I think it sufficient to say, that the term so designated in the Revised Statutes was employed before the enactment of the Code, and was evidently intended to designate all those which could not, with propriety, be classed under the ordinary proceedings in the action. In such a sense they are properly designated as special —that is, out of the ordinary course.

It is said that the power to punish for a contempt, is personal to the judge or tribunal whose dignity or authority has been treated with disrespect; and Shepard, a. Dean ( 13 How. Pr., 174 ), and Wicker a. Dresser (14 Ib., 465, 470), are cited in support of this position.

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As to the first case, it must be remarked that this question was not before the court. The question there was, whether the judge, whose order was disobeyed, or the court of which he was a member, was the proper tribunal to enforce the proceedings for a contempt, and it was held that it belonged to the former. Here, the question is, whether the successor of the judge who has gone out of office is, in judgment of law, the officer or tribunal before whom the proceedings were instituted. If he is not, the party is not punishable at all. Besides, Judge Daly’s decision in Shepard a. Dean, is directly opposed to that of Judge Gierke in Wicker a. Dresser (4 Abbotts’ Pr., 93; S. C., 13 How. Pr., 331 ), who holds that the court has the inherent power, in a general sense, of punishing, as a contempt, disobedience to orders made by judges out of court; and that it is a power essential to the efficacious existence of a judicial tribunal; and that the power has not been taken away from the court by any provisions of the Code relating to supplementary proceedings; and that, on the contrary, the Code, in the sections in reference to those proceedings, plainly recognizes such power.

The case of Wicker a. Dresser ( 14 How. Pr., 465 ), only decides that the application to punish for a contempt under supplementary proceedings, must be made to the judge whose order has been disobeyed, and not to the court (in which respect it is directly contradicted by the case last cited),^[2] but decides nothing as to the continuity of the proceedings before his successor in office, or the legal identity of the two. If, therefore, they are in legal effect the same person, and if the proceedings for contempt are but a mode of obtaining satisfaction of the judgment, then the last-named objection to this process is unsupported by sound reason. I think the order appealed from should be reversed, with ten dollars costs.

* In addition to the cases above referred to on this point, see Matter of Smethurst ( 2 Sandf., 724 ); Kelly a. McCornick (2 E. D. Smith, 503). The case of Wicker a. Dresser, above cited (4 Abbotts' Pr., 93; S. C., 13 How. Pr., 331 ), which asserts the inherent power of the court to punish disobedience to the order of a judge, was approved and followed in Kearney’s Case (13 Ante, 459), in preference to the cases to the contrary above cited. As to the effect of entitling an order in such proceedings, as at special term, or making it returnable at special term, compare Bitting a. Vandenburgh ( 17 How. Pr., 80 ); Dresser a. Van Pelt (15 Ib., 19). Consult, also, Ammidon a. Wolcott (Post, 314); and Haggerty a. Rogers (Ib., note).

Footnotes

* Consult, also, on this point, Fellerman’s Case (2 Ante, 155); Orr’s Case (Ib., 457); Griffin a. Domingues ( 2 Duer, 656 ).