Leslie v. Saratoga Brewing Co.

All questions as to- regularity are waived by the attorneys to these proceedings, and the sole and only question submitted to me is as to whether an order for the payment of the difference in the purchase price of property, under the circumstances above detailed, can be enforced against a defaulting purchaser by proceedings as for a contempt.

These proceedings, which deprive a person of his liberty and confine him to close custody, are dependent upon the statute regulating contempts, and snch statute must be strictly construed in favor of the liberty of the citizen. They are intended to protect the power and dignity of the court, and are not to be used to enforce the collection of damages or the payment of debts as such.

The Code of Civil Procedure (section 14) provides that:

“A court of record, has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy

of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in either of the following' cases: * * * Subsec. 3. A party to the action or special proceeding, an attorney, counselor, or other person, for the nonpayment of a sum of money, ordered or adjudged by the court to be paid, in a case where by law execution cannotibe awarded for the collection of such sum; or for any other disobedience to a lawful mandate of the court.”

This subdivision defines the cases where an order for the payment of money may be enforced by proceedings as for a contempt. The moving party in these proceedings, however, claims to proceed under section 2268, Code Civ. Proc., which reads as follows:

“Where the offense consists of a neglect or refusal to obey an order of the court, requiring the payment of costs, or of a specified sum of money, and the court is satisfied, by proof, by affidavit, that a personal demand thereof has been made, and that payment thereof has been refused or neglected; it may issue, without notice, a warrant to commit the offender to prison, until the costs or other sum of money, and the costs and expenses of the proceeding, are paid, or until he is discharged according to law.”

It is claimed that this section authorizes proceedings as for a contempt to enforce the payment of any money directed to be paid by order of the court. I think this is a misapprehension of the intent of the last-quoted section. It is not a definition of cases in which proceeding's as for a contempt may be taken, but is simply the proceeding provided for enforcing, in appropriate cases, the contempts defined in section 14, as is apparent by reading section 2266. It is claimed, however, that section 2268 is not only a method of procedure, but also a statement of the cases in which such procedure may be taken, and in support of that contention reference is made to section 779 of the 'Code of Civil Procedure as authority for that construction. Formerly, the method of enforcing the payment of costs upon an order was by staying all proceedings upon the part of the party against whom such costs were awarded until they were paid. In 1882, section 779 was amended so as to provide for enforcing the payment of such costs by execution, as well as by staying the proceedings, but such provision referred only to costs. In 1884 such section was amended by inserting the words, “or any other sum of money,” so that it provides “that where costs of a motion, or any other sum of money, directed by an order to be paid,” etc.; that the payment of such costs or sum of money may be enforced by execution; but the same amendment added to the section the following clause: “But nothing herein contained shall be SO' construed as to relieve a party or person from punishment as for contempt, or for disobedience to an order in any case when the remedy or enforcement of such proceeding now exists.” And it is claimed that not only is this a preservation of a then existing right to enforce, by proceedings as for contempt, the payment of money other than costs, directed by an order of the court to be paid, but that it is equivalent to a declaration that such right then existed.

This requires us, then, to examine whether, prior to the amendment of 1884, an order for the payment of money was enforceable by proceedings as for a contempt. The provisions of Code, § 14, subd. 3, and section 2268, are very similar to the provisions of 2 Bev. fet.

“Every court of record shall have power to punish,” etc. “Subd. 3. Parties to suits, attorneys, counselors, solicitors and all other persons, for the nonpayment of any sum of money ordered by such court to be paid, in cases where by law execution cannot be awarded for the collection of such sum; and for any other disobedience to any lawful order, decree or process of such court.”

Section 4 provides as follows:

“When any rule or order of a court shall have been made for the payment of costs, or any other sum of money, and proof, by affidavit, shall be made of a personal demand of such sum of money, and of a refusal to pay it, the court may issue a precept to commit the person so disobeying to prison, until such sum, and the costs and expenses of the proceeding, be paid.”

These sections have been passed upon by the court in the case of Myers v. Becker, 95 N. Y. 486 , and the court, after setting forth both sections, referred to section 4 as follows:

“This section must be construed in harmony with the prior provisions cited, and authorizes the precept mentioned only where an execution cannot be issued. It does not, therefore, apply to a case where money has been ordered to be paid by a final judgment, and so it has been uniformly held. [Oiting a number of cases.]”

One of the cases cited is Watson v. Nelson, 69 N. Y. 536 , which was a case of disobedience of a surrogate’s decree or order directing the payment of money generally, not out of a specific fund, by an executor, to the persons interested in the estate, where, after discussing the various provisions of the statute in relation to contempts, the court said:

“We have been referred to no case, and I have found none, since the Revised Statutes, in which disobedience of a decree or order, merely directing the payment of money by an executor, trustee, or other party, has been adjudged to be a contempt, for which a fine could be imposed, and the party committed, as for a criminal contempt, to close custody. It was the object of the enactments, as proposed by the revisors and adopted by the legislature, to distinguish between the two classes of cases; and, while they preserved the necessary powers of the court to maintain their own dignity and punish all willful disobedience or contumacy, not to allow even the court of chancery to visit a mere failure to pay a decree with more severity than was allowed to the courts of law, whatever may have been the origin of the debt.”

I can see no reason for giving a different construction to the section of the Code from that given to similar sections of the Revised Statutes. A distinction is made between an order for the payment of a sum of money generally and where an order is made for the payment of a specific fund, which is in the possession of, or under the control of, the person against whom the order is made; this latter order being enforceable by proceedings as for a contempt, and not by execution. And, when such distinction is borne. in mind, all seeming conflict between subdivision 3 of section T4 and section 2268 of the Code of Civil Procedure disappears. The appropriate procedure seems to be, where an order is made for the payment of money generally, as in the case of Myers v. Becker, supra, to enter a judgment thereon, and to issue an execution upon the judgment, and, where money can be collected in that way, proceedings for contempt cannot be taken.

The attachment should be vacated.