Ex parte Fleming — 4 Hill & Den. 581

Majority

p. 581

Ex parte Fleming and another.

Headnote

This court will not interfere by mandamus to compel a ministerial officer to disobey an injunction, unless it appear to be plainly void for want of jurisdiction.

Accordingly, where a judge, acting under the non-imprisonment act, (Sess. Laws of ’31, p. 396, § 3 et seq.,) made out a warrant to commit the defendant pursuant to the 9th section, but, being afterwards served with an injmiction from the district court of the United States restraining further proceedings in the matter, refused to deliver the warrant tobe executed; held, that this court would not compel the delivery by mandamus, no want of jurisdiction in respect to the injunction appearing.

The court will not enquire, in such case, whether the injunction was issued improvidently.

Semble, that an injunction to restrain the execution of a sentence for crime may be treated as a nullity. Per Cowen, J.

p. 582

The proceeding contemplated by the 3d section of the non-imprisonment act is of a civil and not a criminal nature. Per Cower, J.

A mandamus is a prerogative writ which this court may issue or withhold in its discretion. Per Cower, J.

Motion for mandamus. Proceedings were instituted against one Williams, by Fleming and Remington, before G. Lawrence, first judge of the Onondaga C. P., to compel satisfaction of a judgment against Williams in the manner prescribed by the non-imprisonment act. (Sess. Laws of 1831, p. 396, §3 et seq.) After a hearing, the judge decided that Williams was guilty of fraud within the 2d and 3d subdivisions of the 4th section of the act, and determined to commit him in default of a compliance with the terms of the 10th section. Williams refused to comply, and the judge drew up and signed a warrant of commitment, which, however, he refused to deliver, on the ground that he had been served with an injunction from the district court of the United States restraining further proceedings. The injunction was directed to u Robert Fleming, ” (one of the parties to the proceeding before the judge,) u and to his agents, counsellors, attorneys, and other officers acting under him or by his direction, and each and every of them.” A motion was now made in behalf of Fleming and Remington for a mandamus commanding the judge to deliver the warrant.

A. Fleming, for the motion,

cited Townsend v. Monell, ( 10 Wend. 577 ,) and Spencer v. Hilton, (id. 608.)

By the Court,

It is certainly impossible for me, on the case stated, to see expressly that this injunction was properly issued; but it is not my duty to enquire whether it was or not. I am not prepared to deny that, under circumstances, it might have been properly issued; but if I were, it is enough to know that Judge Conkling has power to issue and enforce the process of injunction like any other chancellor. If it has improvidently issued, I am bound to suppose that he will set it

p. 583

aside on motion. He having jurisdiction, it is the same thing to me as if it had issued from the court of chancery of this state. Before I should be warranted in compelling a ministerial officer to disregard it, I must be satisfied, in the strong language of counsel, that the ordering of the writ was a mere act of usurpation5 in other words, that Judge Conkling wanted jurisdiction over the subject matter 3 for it is not made a question that he has it over the process and over every person residing in his district. The injunction recites that the proceeding before Judge Lawrence is contrary to equity 3 and if it did not, I am bound to presume in favor of a court having jurisdiction over matters of equity, that the judge has considered and acted on such a matter.

I am therefore called upon to order the doing of an act by Judge Lawrence which would be in direct violation of a valid injunction, and subject him to punishment accordingly. It is true that courts of law do not hold themselves restrained by injunction from proceeding 5^[1] nor should any officer be thus restrained while acting as a judge. But no court ought to compel either parties or ministerial officers to put themselves in positive conflict with the order or writ of another court. (Burt v. Mapes, 1 Hill, 649 , 651.)

It is said that the proceeding before Judge Lawrence was to convict of a crime and punish it 3 and that a court of equity has no jurisdiction over a criminal matter. It may be conceded that an injunction against an execution for a simple crime would be a nullity. But no one can doubt that the main object of the statute is the same as that of the old law in giving a ca. sa. It is to compel payment by means of property which a fi. fa. cannot reach. The great point is the civil remedy. ( 10 Wend. 6113 Berthelon v. Betts, ante, p. 577.)

Beside, the mandamus is a prerogative writ which we have power to issue or withhold according to- our discretion 3 and,

(a) (a) See Kelly v. Cowing, (ante, p. 366.)

p. 584

independently of other questions, it would be very indiscreet to place the judge between two fires, as we should do by granting this motion.

Motion denied.

Cases cited

Ex parte Townsend v. Morrell 10 Wend. 577 N.Y. Sup. Ct. p. 582