In re Depue — 108 A.D. 58

Majority

p. 58

In the Matter of the Application of Carrie Bell Depue, Respondent, for a Writ of Habeas Corpus to Bring up the Body of Her, the Said Carrie Bell Depue. Hyman Sonn and Henry Sonn, Appellants.

Headnote

' Contempt — order to show cause why the delinquent should not be punished —- service thereof upon the attoi’ney and not upon the delinquent personally —-what may be considered, and. what order may be set aside’, on a habeas corpus proceeding to discharge the delinquent from imprisonment.

Where a party, sought to be examined as a witnéss in proceedings supplementary .to an execution, fails to attend on the day.fixed in a subpoena personally served upon her, .and she is thereafter personally served with a.copy of an order to show cause why she should not be punished for contempt because of her failure to obey the subpoena, and upon the return day of such order to show cause the delin

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quent party appears by an attorney and an order is ínade adj udging her guilty of contempt, imposing a fine and fixing another date for her attendance as a witness before the referee, and such last-mentioned order is served upon her attorney, if she neglects to appear for examination on the date fixed by such last-mentioned order, she may properly be adjudged guilty of contempt notwithstanding that the same was not served upon her personally and that the order requiring her to show cause why she should not be adjudged guilty of contempt for failing to appear on the second date fixed for her appearance was not served upon her personally but upon the attorney who appeared for her when the first order adjudging her guilty of contempt was made.

Where, after the delinquent party has been imprisoned pursuant to the second order adjudging her guilty of contempt, she institutes a habeas corpus proceeding based upon the alleged invalidity of the order under which she was imprisoned, tho court has no power in the habeas corpus proceeding to set aside such order as such action is not within the purview of the habeas corpus proceeding.

Semble, however, that, while in the habeas corpus proceeding the order in question could not have been set aside, the validity or legality of such order was before the court, and that if it appeared that such order was invalid or unauthorized the delinquent party could have been released from imprisonment.

Appeal by Hyman Sonn and another, judgment creditors, from an order of the county judge of Broome county, entered in the office of the clerk of the county of Broome on the 19tlx day of ■ May, 1905, releasing Carrie Bell Depue from custody upon a writ of habeas corpus.

The relator was arrested and held by the sheriff of the county of Broome under an order of the county judge of the county, dated January 2, 1902, adjudging her guilty of contempt in refusing to obey an order theretofore made by said county judge and a subpoena theretofore issued by a referee in supplementary proceedings. Upon the 3d day of February, 1900, a judgment was entered against David D. Depue, this defendant’s husband, for the sum of $135.40. Supplementary proceedings were thereafter commenced and an order therein made by the Broome county judge directing the said David D. Depue to appear before Harry C. Walker, a referee, to be examined concerning his property. The said judgment debtor was duly served and appeared before said referee, and the matter was adjourned to the 17th day of May, 1900.

Upon March 23,1900, a subpoena, in due form, was issued, directed to this relator, whereby she was required to attend before said referee at his office on said May seventeenth and give evidence as a witness

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in said proceedings. This subpoena was personally served upon the .relator upon the 15th day of May, 1900. The relator made default in appearing pursuant to the requirement of the subpoena, and upon the 27th day of May, 19.01, an order was made by the Broome county judge requiring the relator to show cause before him at his chambers, upon the twenty-sixth day of July, why she shotild not be punished for contempt in failing to obey the command of the subpoena. This order to show cause .was personally served upon the relator upon July 18, 1901.' Upon the return of said order the relator appeared by one A. P. Fish, an attorney of this court, who argued in her behalf upon said proceedings, and upon July 27, 1901, an order was made by the county judge adjudging the relator guilty of contempt and fining her ten dollars, and requiring that she appear before the said referee at his office on the 8th day of August, 1901. This order having been made, was served, not upon the relator, but upon A. P. Fish, the attorney who appeared for the relator in the proceedings. The fine imposed by the order was duly paid. Upon August 8,1901, the relator appeared by the said attorney, A. P. Fish, upon whose request an adjournment was taken to Octo-. ber second, and thereafter, at the request of the same.attorney appearing for the relator, an adjournment was taken to October twenty-fourth. Upon October twenty-fourth no one appeared in behalf of the relator. Thereafter and upon December 14, 1901, an order was made by the county judge requiring the said relator to appear before him upon January 2, 1902, and show cause why she should not be punished for contempt in failing to appear before the said referee upon August eighth as required by his previous order. This order to show cause was not personally served on the relator, but only upon the said attorney. Upon said return day no one appeared-and an order was thereupon entered adjudging the relator guilty of contempt and fining her the sum of twenty dollars, the amount of the plaintiff’s costs and expenses in the proceedings, and in addition thereto the sum of one hundred and fifty-one dollars, and committing her to the Broome county jail until she complied with the acts required of her and appeared for examination before the said referee. Upon this order the relator' was arrested by the sheriff of Broome county and confined. Thereupon she petitioned the Broome county judge for'a writ of habeas corpus, alleging that her

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imprisonment was illegal and void, alleging the illegality thereof for the reason that no subpcena was personally served upon her requiring her to be examined upon August 8, 1901, and that the said order requiring her so to appear was without jurisdiction and void, and also upon the ground that the fine imposed was exorbitant, unjust and illegal. Upon the return to this writ the judgment creditors appeared voluntarily. Upon behalf of the judgment creditors tile affidavits of one Hermans and Fish were permitted to be filed as against the objection- of the relator. The order made upon said return released the relator from custody by virtue of the order of January 2, 1902, and vacated and set aside said order. From this order the judgment creditors have appealed.

Further facts appear in the opinion.

T. B. Merchant and L. M. Merchant, for the appellants.

Thomas B. Kattell, for the respondent.

At the threshold of this appeal the respondent contends, inasmuch as the order of January 2, 1902, under which the relator was imprisoned, has been vacated and set aside as a part of the order here appealed from, that the right to detain the relator has necessarily ceased. This contention is undoubtedly sound provided only the county judge upon this application had the riglit to review the order which he had made punishing the relator for contempt and directing her imprisonment. Upon this writ, however, the equity of the order for imprisonment was not before the learned county judge. The relator might have made a motion to set aside that order upon which the county judge could have exercised his discretion either in remitting the punishment or in modifying the same. This proceeding, _ however, is based upon the illegality of the imprisonment — the invalidity of the order upon which the relator is imprisoned. It has been apparently so decided as the order from which this appeal is taken recites that the imprisonment is unlawful and unauthorized. That part of the order, therefore, which assumes to set aside the prior order is ineffective as not within the purview of this proceeding. (See People ex rel. Woolf v. Jacobs, 66 N. Y. 8 .)

The validity or legality of the order of January second was, how

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ever, before the court. While in this proceeding the order could not have been set aside, nevertheless the relator could have been released from imprisonment had such order been invalid or unauthorized. ■ ,

The validity of this order is challenged by reason of the fact that the order of July twenty-seventh was not served upon the relator personally but was only served upon A. P. Fish, her attorney ; also i»y the fact that the order to show cause upon which the order of January second was made was served only upon the attor- . ney. It will be borne in mind that this order of July twenty-seventh was the order which adjudged the relator guilty of contempt in failing to appear before the referee pursuant to the subpoena originally issued and personally served, and which also required ■ the relator to appear before the referee upon August eighth, and for a failure to obey which order she was finally adjudged in contempt and imprisoned. It is undoubtedly a general rule that, in order to bring a party in- contempt, the order requiring the specific act for failure to perform which a contempt is claimed, must be personally served upon the party. In this case the relator was not a party to the proceeding but was a witness only. The subpoena requiring her attendance before the referee was personally and duly served upon her. The command of this subpoena she refused to obey, and for this refusal she was, by the order of July twenty-spventh, ■ fined ten dollars. By that same order she was required to obey the command oft the subpoena upon a new day fixed by the order, to wit, the eighth day of August. She was properly before the court. This requirement could have been made by the court as incidental to the punishment for her refusal to obey the command of the subpoena. The failure to serve the same personally upon the relator or. to serve upon the relator personally the order to show cause why she should not be punished for a contempt in refusing to- appear upon the eighth day of August is, under the authorities, no objection to the demand of the judgment creditors' that she be punished for contempt in failing to respect the amended, date of the command of the subpoena. In Rochester Lamp Co. v. Brigham ( 1 App. Div. 490 ) an order was personally served within the State upon the defendant requiring him to appear upon a certain day. It was afterwards vacated and later the order vacating

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that order was reversed by the General Term, and this order of reversal fixed a new date upon which the defendant should appear. This order was served not upon the defendant, but upon his attorney, and it was held that the order of the General Term and the order to show cause why he should not be punished for contempt in refusing to attend upon the adjourned day might properly be served upon the attorney. Until a party has purged himself of the contempt, both by paying the fine imposed and by obeying the command of the'writ, he is in court subject to its jurisdiction through his attorney, who stands for him both to defend him from the responsibility of his disobedience of the mandate and tó receive for him such notice as needs be given to him of the order made in the proceeding.

In this proceeding the relator claims that she knew nothing, of this order and was not informed thereof by Mr. Fish; that the attorney had no authority to appear for her in the proceeding and that he is insolvent. Whatever force might be given to these allegations, upon an application to the County Court to modify the order of January 2, 1902, they can hardly affect the question as to the jurisdiction of the judge to grant the order under which the relator was imprisoned. As that order was lawfully granted, the imprisonment was authorized and the order releasing the relator therefrom should be .reversed and the relator remanded to the sheriff of the county of Broome pursuant to the order upon which she was held at the time of her release.

All concurred.

Final order reversed and relator remanded to the sheriff of the county of Broome.

Cases cited

People ex rel. Woolf v. Jacobs 66 N. Y. 8 N.Y. 1876-04-18 p. 61
Rochester Lamp Co. v. Brigham 1 App. Div. 490 N.Y. App. Div. 1896-02-07 p. 62