Gibbs v. Prindle — 9 A.D. 29

Majority

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David Gibbs and William H. Gibbs, Respondents, v. Mary Louisa Prindle, Appellant.

Headnote

Gontenpt—faihwe to obey an order in supplementary proceedings, of the hearing under which but three hours and a half notice was given—reasonable excuses—an order adjudging one guilty of contempt is appealable.

Upon an appeal from, an order made in an action adjudging the defendant guilty of contempt, it apiDeared that she lived about three miles from" Saratoga Springs, and that an order was served on her at her residence at half-past ten o’clock in the forenoon of the day, requiring her to appear before a referee in supplementary proceedings at two o’clock in the afternoon of the same day in Saratoga Springs. Her husband and son had left the house early in the morning, and the son had with him the-horse which the defendant was in the habit of driving, and the only single wagon which she could use, and her condition of health was such as to make it unreasonable to require her to walk three miles. Held, that it was erroneous to adjudge her to be guilty of contempt in having failed to appear;

That under the circumstances the notice given her of the examination was not sufficient;

That an order adjudging her guilty of contempt was appealable, under section 1856 of the Code of Civil Procedure, and that section 2483 of the Code of Civil Procedure was not applicable to it.

Appeal by the defendant, Mary Louisa Prindle, from, an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Saratoga on the 25th day of February, 1896, adjudging her guilty of contempt of court.

The order from which this appeal is taken adjudges the defendant guilty of contempt in not obeying an order made by a justice of this court on the 20th. day of August, 1895, in proceedings supplementary to execution, requiring her to appear and answer concerning her property before a referee, in the village of Saratoga Springs, on the twenty-first day of August, at two o’clock in the afternoon. Such order, was not served upon the defendant until half-past, ten o’clock in the forenoon of the twenty-first. The defendant did not appear in response to that order. On the twenty-third of August said justice made an order requiring the defendant to- show cause before him on August twenty-eighth, why she should not be punished for contempt in not obeying the order of August twentieth. In response to such order the defendant appeared by attorney, and

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filed an affidavit in which she claimed that she was too ill to attend before the referee, on August twenty-first, and that she was not yet. able to submit to an examination. Also, that she was alone at home all of the twenty-first until about six o’clock p. m. ; and that she did not know that she was required to at once attend before the referee. She also produced the affidavit of her physician as to her inability to ¡attend an examination, and- of her son as to the fact of her. being alone. Counter affidavits were produced 'by the plaintiff as to the defendant’s health, and the justice, without passing upon the question of her contempt on that day, referred the matter to a referee to take proof as to the condition of her health on the twenty-first, and as to her ability to appear and be examined. A hearing was had before such referee, occupying, as appears from the bill of expenses rendered, ten days, and he then made his report, in which hé finds that the defendant’s health was such that she could have appeared on the twenty-first and have given answers concerning her property.

On notice duly given, such report was confirmed at a Special Term .of this court on the 22d day of February, 1896, and an order made adjudging the defendant guilty of contempt in not obeying the judge’s ordér of August twentieth, and imposing uponher as punish^ ment for such contempt a fine of fifty dollars, and' also requiring her to pay the costs and expenses of the supplementary proceedings before ' the referee, viz., $34, and the costs and expenses of fhe reference had pursuant to the judge’s order of August twenty-eighth,. amounting to ■ $240.70, making the total which she yras required to .pay $324.70.

The order further provides that in case of her failure to pay such-amount within fifteen days after service of a copy of the. order, she be imprisoned in the county jail of Saratoga county until such amount be fully paid or-until the further order of the court herein. Such order also provides that she appear and answer concerning her property before the referee originally named in .the order of August twentieth at the place therein named on March 5, 1896.

From such order this appeal is taken.

Charles M. Davison, for the appellant,

Ira D. Roods, for -the respondents. . .

The defendant was in contempt for not obeying the order of August twentieth, if she refused, or without sufficient excuse neglected, to obey it, after it had been duly served upon her, otherwise not. (Code, § 2457.)

Conceding that she was “ physically and mentally able to attend and be examined ” on the 21st of August, as is found by the referee, yet we think the record discloses other facts which furnished to her a sufficient excuse for not so doing.

The order, which was served upon her at half-past ten o’clock in the forenoon, required her to appear before the referee in Saratoga Springs at two o’clock in the afternoon of that day. She was alone in the house when it was served. Her htisband and son had both left that morning at about seven o’clock to be absent for the day. The son had with him the horse which the defendant was in the habit of driving and the only single wagon that was then available for her use. Such residence was some three miles from the village where she was required to attend, and it is very clear that in the condition of health in which she then was, it would be unreasonable to require her to have walked that distance.

Such was the situation which confronted her when called upon to appear in Saratoga Springs at two o’clock, that afternoon. She had no means of getting there except by walking; no one to leave in charge of the house and premises, and no one to send to represent her or to explain her absence.

These facts clearly appear from the record before us, and in our judgment they form a sufficient excuse for her not appearing as required by the order. Had the order been served the day it was granted, and had the defendant been given an opportunity to prepare over night for her absence the next day, a different case would be presented. Then means of conveyance could have been arranged for,, and other members of the.'. family could have remained in. charge of the house. But when the moving party in such proceedings attempts to compel the attendance of the debtor on as short a notice as was given in this ease, he is very likely to meet with a condition of affairs that will excuse so prompt an attendance, and particularly when the party summoned is a woman in charge of a household, and who may reasonably ask for some assistance and preparation

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in order to enable her to attend. Although the statute does not' specify how long a notice yaust be given in these proceedings, yet it is manifest that a reasonable length of time should be given. There is nothing in the character of the proceedings nor in the object to be accomplished by them that requires undue haste. We do not intend to hold that in all instances a notice of three and one-half hours is to be deemed insufficient. When the party is resident in the same city or village and can easily reach the appointed place, a few hours might be a reasonable notice; but we do not think that extraordinary and unreasonable efforts to obey the order upon a few hours’ notice should be required of a debtor.

We do not discover any willful refusal on the defendant’s part to obey the order. Pier claim that she was not in a condition of health' to be examined, although not sustained by the referee, does not indicate such a refusal. Her attending physician so advised her. He' also so testified on the hearing, and the evidence repels the idea that he was acting in collusion with her to avoid her examination. Our conclusion, therefore, is that' the defendant neither refused, nor did she without sufficient excuse neglect, to obey the order of August twentieth. She should not, therefore, have been adjudged in contempt, and the order in that respect was erroneous.

This conclusion renders it unnecessary to pass upon the several objections which the appellant makes to the bill of costs and expenses charged against her. Such costs have, however, been made up with such an utter disregard of the rules regulating the same that we deem it necessary to say that no inference of an approval should be drawn from our omission to specifically point out their numerous errors. It would be difficult to find in the statute any authority for taxing a large majority of the items which the respondents have incorporated into their so-called bill of costs, and had we not reached the conclusion that the defendant should not have been held for contempt, we would have found it necessary to strike out a very large y>art of the fine which, under the name of “ costs and expenses,” has been imposed upon her.

The objection made by the respondents’ counsel that no appeal lies from such an order is not well taken. This order is clearly one of those from which an appeal is allowed by section 1356 of the Code of Civil Procedure, and the provisions of section 2433 of that Code are not applicable to it.

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The order of the Special Term, therefore, so far as it held the defendant to be guilty of contempt, and imposed a fine upon her and required her to pay the costs therein specified, is reversed, with costs, with leave to the plaintiffs to apply to the justice who granted the original order of August 20, 1895, to fix a time at which the defendant shall appear before the referee pursuant to such order.

All concurred.

Order appealed from, so far as it holds that the defendant was ■ guilty of contempt and imposes a fine upon her and requires her to pay the costs therein specified, reversed, with costs, with leave to the plaintiffs to apply to the justice who granted the original order of August 20, 1895, to fix the time at which the defendant shall appear before the referee pursuant to such order.