In re the Examination of Jones — 126 A.D. 112

Majority

p. 112

In the Matter of the Examination of Robert E. Jones, Judgment Debtor, Appellant, in Proceedings Supplementary to Execution upon the Application of John L. Maher and Others, Judgment Creditors, Respondents.

Fourth Department,

May 6, 1908.

Headnote

Contempt — when civil — order reversed.

A judgment debtor cannot be punished for a criminal contempt for failing to appear for examination as to his property at the time stated in the order in proceedings supplementary to execution when he did appear two days later,

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and in the presence of the attorney for the plaintiff offered to .submit to an examination, and it does not appear that his default was willful or intended. Nor can he be punished for a civil contempt in the absence of an adjudication that the rights of the judgment creditor were defeated, impaired, impeded or prejudiced.

Appeal by Robert E. Jones, judgment debtor, from an order of the County Court of Oneida county, made at a Special Term of said court and entered in the office of the clerk of said county on the 21st day of January, 1908, adjudging the said judgment debtor to be guilty of contempt of court and directing “ that Robert E. Jones, judgment debtor herein, pay into this court the sum of twenty-five dollars or stand committed to the Oneida County jail ten (10) days on failure to pay said fine, as punishment for contempt of court.” On the 3d day of September, 1907, a judgment was duly recovered and perfected in the Justice’s Court of the city of Utica in favor of John L. Maher et al. against the defendant in that action, Robert E. Jones, for fifty-three dollars and fifty cents damages and two dollars and fifty cents costs. A transcript of said judgment was filed and said judgment duly do.cketed in the office of the clerk of Oneida county on the 13th day of November, 1907. . Thereafter and on the thirteenth day of November an execution against the property of the judgment debtor was duly issued out of said County Court and delivered to the sheriff of Oneida county, where the judgment debtor resided, and thereafter and in due time the sheriff returned such execution wholly unsatisfied. Thereupon and on the 17th day of December, 1907, an order in proceedings supplementary to execution was made by the county judge, directing the ‘judgment debtor to appear before a referee appointed for that purpose on the 23d day of December, 1907, at two o’clock, p. m., to be examined concerning his property. The judgment debtor did not appear pursuant to the directions contained in said order. Thereupon and on the 26th day of December, 1907, upon motion of the judgment creditors, an order to show cause was made by the county judge requiring the judgment debtor to show cause -why he should not be punished for contempt because of his failure to appear and be examined before the referee, as directed. Upon the return of such order to show cause and on December 30, 1907, the proceeding to punish

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for contempt was dismissed. Upon what ground does not appear, but as a part of such order of dismissal it was further ordered that the judgment debtor appear before the referee theretofore appointed on the 2d day of January, 1908, at two o’clock, p. m., and there be examined as to his property. Such order was duly served upon the defendant, and he did not appear at the time therein designated. His excuse for not appearing is that he understood that the judge orally named the 4th day of January, 1908, as the day upon which he was directed to appear, and that upon such last-mentioned day he did appear before the referee; that the plaintiff's attorney also was present, and that he offered to submit to an examination as to his property; that plaintiff’s attorney refused to proceed with or take such examination, but instead obtained an order, which was duly served upon the defendant, requiring him to show cause why he should not be punished for contempt in having failed to appear before the referee and submit to an examination as to his property on the 2d day of January, 1908, rather than on the 4th day of January, 1908. On the return day of such order to show cause the defendant appeared, and by his affidavit stated that the oral direction given to him by the county judge was that he should appear before the referee on the 4th day of January, 1908, at two o’clock p. m., at which time he did appear and offered to submit to examination, and further, that he has at all times endeavored to obey the orders of the court and to be amenable to its direction. Notwithstanding, the order appealed from was made and entered. Such order does not recite, and no determination is made, that defendant’s disobedience was willful; neither is there any determination, as recited in the order, that the defendant’s failure to appear before the referee on the 2d day of January, 1908, rather than on the fourth day of said month, caused or resulted in any damages to the judgment creditors in this case.

Robert E. Jones, appellant, in person.

H. C. Sholes, for the respondents.

From the facts which have been fully set forth in the preceding statement, we think it clear that by the order appealed from it was

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sought to punish the defendant as for a civil contempt. A criminal contempt is defined in section 8 of the Code of Civil Procedure. Its provisions, so far as applicable to this case, are: “ 3. Wilful disobedience to its (the court’s) lawful mandate. 4. Resistance wilfully offered to its lawful mandate.” In the order appealed from there is no adjudication that the conduct of the defendant in failing to appear before the referee and be examined on the 2d day of January, 1908, as to his property, rather than two days later, when he actually did appear and offer to submit to such examination, was willful and intended. Rothing appears in the record which would have supported such a determination.

What constitutes a criminal contempt and the distinction between it and a civil contempt is clearly pointed out in the case of People ex rel. Munsell v. Court of Oyer & Terminer ( 101 N. Y. 245 ), in which Judge Finch, writing the opinion for the court (atp. 248), said : “ The second class of contempts consists of those whose cause and result are a violation of the rights of the public as represented by their constituted legal tribunals, and a punishment for the wrong in the interest of public justice, and not in the interest of an individual litigant. In these cases if a fine is imposed its maximum is limited by a fixed general law, and not at all by the needs of individuals; and its proceeds when collected go into the public treasury and not -into the purse of an individual suitor. The fine is punishment rather than indemnity, and if imprisonment is added it is in the interest of public justice and purely as a penalty, and not at all as a means of securing indemnity to an individual. Recessarily these contempts in their origin and punishment partake of the nature of crimes, which are violations of the public law, and end in the vindication of public justice; and hence are named criminal contempts. As described in the statute, an element of willfulness, or of evil intention enters into and characterizes them. They are a disturbance of the court which interferes with its performance of duty as a judicial tribunal; willful disobedience to its lawful mandate; resistance to such mandate willfully offered; contumacious and unlawful refusal to be sworn as a witness, or to answer a proper question ; and publication of a false and grossly inaccurate report of its proceedings.”

Rone of the elements recited by the learned judge are present in

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the case at bar and, as we have seen, no adjudication to that effect was made by the County Court. So that we must assume that if the defendant was guilty, it was as for a civil contempt. But the order appealed from must fail of its purpose in that regard because there is no adjudication that because of the defendant’s failure to appear on the 2d day of January, 1908, as directed by the order, the rights of the judgment creditors were defeated, impaired, impeded or prejudiced. And, as said by Mr. Justice Daniels in Sandford v. Sandford ( 40 Hun, 540 ), “ that fact must be ascertained and adjudged by the court directing the punishment which is to be imposed. (Code of Civ. Pro. §§ 2266, 2281; Swenarton v. Shupe^[1] 40 Hun, 41 .) The order from which the appeal has been taken contains no such adjudication and because of that omission it fails to comply with what has been directed by these sections of the statute.”

In the case of Socialistic Co-op. Pub. Assn. v. Kuhn, No. 2 ( 51 App. Div. 583 ) the head note in part is as follows: “ An order, punishing a person for contempt of court, in a civil action, must contain an adjudication that he is guilty of the contempt and that the act complained of not only has a tendency to, but actually does, defeat, impair, impede or prejudice the rights or remedies of the complaining party; a recital that the punishment is inflicted ‘ for the wilful and contumacious disobedience of the defendants of the order of injunction herein, dated September 1, 1899, and for their contempt of this court,’ is insufficient.”

In the case of Boon v. McGucken ( 67 Hun, 251 , a case decided at the General Term of this department) it was held ‘‘ That, assuming the proceeding to he for civil contempt, the order could not be sustained for the reason that it did not contain the adjudication and determination required by the Code of Civil Procedure in such a proceeding, viz.,that the act complained of is one ‘by which a right or remedy of a party to a civil action * * * may be defeated, impaired, impeded or prejudiced’ (§§ 14, 2266) ‘and that it was calculated to, or actually did, defeat, impair, impede or prejudice the rights or remedies of a party to an action ’ etc., (sec. 2281.) ”

Many other cases to the same effect might be cited. In the case

* Matter of Swenarton v. Shupe.— [Rep. •

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at bar, while the affidavit upon which the order is based contains the general statement by the attorney for the judgment creditors that he “ alleges as he verily believes that the jdgt. ers. herein have been defeated in their rights and their remedy impaired by the failure of Kobert E. Jones to appear as directed by the judge’s order dated December 30th, 1907,” there are no facts stated in support of such allegation and, as we have seen, there is no adjudication to that effect by the court, which, under the authorities, we consider to have been essential. Indeed, upon the facts presented, it is difficult to see why the attorney for the judgment creditors did not proceed with the examination of the defendant when he appeared before the referee and offered to submit to an examination on the 4th day of January, 1908, the referee and the attorney for the judgment creditors both being then present. There is no suggestion that any transfer of property had been made by the judgment debtor in the meantime, and, so far as appears, all the facts might havé been ascertained by the judgment creditors as well on the fourth day of January as on the second, if their only purpose had been to procure an investigation to enable them to determine whether the judgment debtor had property subject to levy and sale under execution or which would authorize the appointment of a receiver.

We think that the order appealed from should be reversed, with costs and disbursements, and the proceeding to punish the defendant as for a contempt should be dismissed, with ten dollars costs.

All concurred.

Order reversed, with costs, and proceeding to punish the defendant as for a contempt dismissed, with ten dollars costs.

Cases cited

People ex rel. v. Court of Oyer & Terminer 101 N. Y. 245 N.Y. 1886-01-19 p. 115