Emerson v. Huss

106 N.W. 518, 127 Wis. 215, 1906 Wisc. LEXIS 157

• Court: Wisconsin Supreme Court
• Decided: February 23, 1906
• Status: Published

Opinion

SiebecKER, J.

The proceedings upon which errors are assigned were instituted, under ch. 150, Stats. 1898, to punish-the defendant as for a contempt for his neglect, or violation-of duty, or misconduct, through which the rights and remedies' of the judgment creditors in the action against him are alleged to have been impeded and prejudiced. The facts and circumstances of the alleged misconduct are set forth in the foregoing statement of facts. The course of the proceedings throughout the many different terms of the circuit court is not clearly-presented in all particulars, but it appears sufficiently clear that the action was instituted against defendant in justice’s-court in Price county, that a transcript of a judgment in the action was filed in the office of the clerk of the circuit court for Price county, that execution issued and was returned wholly unsatisfied, and that the proceedings for defendant’s-examination were had as hereinbefore stated.

The first question arising is: Could the court by the order of November 28, 1904, review its adjudication made on September 7th ? It appears that the court undertook to re-examine-its adjudication of September 7th whereby it ordered the defendant to appear and be examined as theretofore directed, "to pay a fine, and in case of default in these matters to be imprisoned. It is manifest that the court attempted, by the punishment of the defendant as for a contempt, to enforce the same rights by the order of September Y, 1904, as by the adjudication of November 28th following, and that the adjudication in the latter order is a review of the former. This •order of November 28th is attacked upon the ground that the court could not, at a term subsequent to the one at which the order was made, so review its adjudication of September Yth. The proceeding to examine defendant concerning his property was one pending and triable in the circuit court for Price county. The initial steps were taken before the county judge of Price county, exercising the powers of a court commissioner of the circuit court. The order of September Yth was made at a general term of the Taylor county circuit •court, which, under the law, was a special term for the Price county circuit court, and the order of November 28th was made at a general term of the Ashland county circuit court, which was also a special term for the Price county circuit •court. Under sec. 2424, Stats. 1898, as amended by ch. 6, Laws of 1905, each of these special terms of the Price county •circuit court must be held to be a separate term of this court. State ex rel. Ashland W. Co. v. Bardon, 103 Wis. 297, 79 N. W. 226. They commence and end as terms of this court, respectively, with the opening and closing of the term in the county where they are actually held. Id. This made the term held in Ashland county a special term of the Price •county circuit court and a subsequent term to the one held as a special term in Taylor county, and the order of November 28th, made at a session of the court in Ashland county as a ■special term of the Price county circuit court, was made at a term subsequent to the one at which the September Yth order' was made. Since no judgment or final order in a special proceeding can be reviewed on its merits at a subsequent term of tbe court, except as provided by tbe statute authorizing tbe court to grant relief from a judgment or order or other proceeding made through mistake, inadvertence, surprise, or excusable neglect, we think it must follow that tbe order of November 28th was unauthorized, and hence void and of no effect. Sec. 2832, Stats. 1898; Flanders v. Sherman, 18 Wis. 575, 593; Milwaukee Mut. L. & B. Soc. v. Jagodzinski, 84 Wis. 35, 54 N. W. 102; Pinger v. Vanclick, 36 Wis. 141.

This leaves the order of September 7th operative as the final order in the proceeding. Its validity is assailed because it fails to comply with the provisions of the statutes providing for “proceedings to punish contempts to protect the rights of parties in civil actions.” It is urged that the court erroneously by this order in the proceeding inflicted punishment on defendant as for a criminal contempt, and wrongfully and without adjudicating the questions involved imposed a fine for the alleged misconduct as for contempt in civil actions. The provisions of the statutes respecting the two classes of contempts, embodied in chs. 117 and 150, Stats. 1898, preserve a marked distinction in the remedies they afford and the procedure to be followed in each class. An examination of the decisions of this court involving these statutes shows a considerable contrariety of opinion, as to their construction and scope,'' which it would be impracticable to set out in detail at this time. In their application of the statutes to the cases actually presented, with the exception of those specifically noted hereafter, the decisions rendered are in substantial harmony. There is substantial accord in the cases as to the infliction of penalties for criminal contempts under secs. 2565-2568, Stats. 1898. It is clear that the proceeding is to be prosecuted in the name of the state, either in a summary way or upon notice and inquiry; and, if it is adjudicated that the defendant is guilty of the alleged offense* punishment- by fine or imprisonment, or both, may be visited, witbin the limits provided, on the contemnor; and, if imprisonment is imposed, the commitment must specify the particular circumstances of the offense. There is no question but that the. moneys paid as fines under such proceedings go to the school fund as in criminal prosecutions, and that if imprisonment be ordered it is a commitment as a punishment for a criminal offense. The following cases are illustrative of this class of contempts and the approved procedure for their punishment: Haight v. Lucia, 36 Wis. 355; State ex rel. Mann v. Brophy, 38 Wis. 413; In re Murphey, 39 Wis. 286; State ex rel. Att’y Gen. v. Circuit Court, 97 Wis. 1, 72 N. W. 193; In re Savin, 131 U. S. 267, 9 Sup. Ct. 699; In re Chadwick, 109 Mich. 588, 67 N. W. 1071.

In proceedings to punish as for a contempt under ch. 150, Stats. 1898, much confusion has arisen from attempts to restrict the scope of the statutes by limiting the remedy under them to an indemnity of the injured party in his private rights by a recovery of his money loss or injury, and by coercing performance of a duty unperformed, owing to the injured party, and still within the power of the contemnor to perform. It is true that no misconduct is punishable under the provisions of this chapter unless it appears that the rights or remedies of a party in an action or proceeding depending or triable in the court or before one of its commissioners may thereby be defeated, impaired, impeded, or prejudiced. The provisions, however, plainly authorize the court to punish -by fine and imprisonment all acts of misconduct coming within them, though the misconduct may not pertain to the performance of a duty still within the power of the contemnor to perform, and though it may produce no actual loss or injury. The proceedings provided by these statutes seek to accomplish a twofold purpose: one, to enforce obedience of the decrees of the court; and the other, to indemnify parties to the action for their actual loss or injury and to compel the performance of duties still witbiu tbe contemnor’s power. If no actual loss or injury is produced by tbe misconduct, tben some penalty must be inflicted for tbe contumacious conduct wbicb results in defeating, impeding, or prejudicing tbe rights or remedies of any party through disobedience of tbe court’s lawful commands. No good reason is perceived why, in protecting tbe rights of parties in civil actions, a money penalty or imprisonment may not appropriately be visited on tbe offender in civil proceedings, even though it appears that no actual pecuniary loss has resulted to tbe parties. Tbe means are certainly well adapted to accomplish tbe purpose of protecting private rights and enforcing tbe court’s commands in respect thereto, and if any money paid by tbe contemnor as a penalty for bis misconduct is not due tbe party whose rights have been impeded or prejudiced, because no pecuniary loss resulted to him, we perceive no good reason why it may not very properly be .turned over to tbe school fund of the state, as contemplated by secs. 3495, 3496, Stats. 1898.. We discover no force in tbe claim that this will result in a blending of proceedings to punish contempts in civil actions with those authorized for the punishment of contempts criminally. The two classes of proceedings seek to reach entirely different objects and are subject to wholly different procedures; the one-having all the characteristics and incidents of a civil proceeding, while the other has those of a criminal prosecution in the name of the state.

This construction of the statutes results in a conflict with the observation made by this court in In re Pierce, 44 Wis. 411, 424, to the effect that the “fine” contemplated in the provisions' as to civil contempts is the same as “indemnity,” thus-excluding the idea that a fine could be imposed as a penalty merely, in a proceeding to protect the rights of parties in a civil action. This conclusion was based on the ground that these statutes were taken from those of New York on the same subject, and that the word “fine” as there used was intended to coyer only indemnity. A comparison of tbe provisions of tbis chapter with those of New York shows a marked difference in their context and evident meaning. The New York statute reads: “If an actual loss or injury shall have been produced to any party by the misconduct alleged, a fine shall be imposed sufficient to indemnify such party” [2 R. S. p. 557, pt. 3, tit. 13, § 21], while secs. 3489, 3490, Stats. 1898, provide that, if the party-be guilty of the alleged misconduct, the court “shall proceed to impose a fine or to imprison him, or both, as the nature of the case shall require,” and “if an actual loss or injury has been produced . . . the court shall order a sufficient sum to be paid by the defendant to such party to indemnify him and to satisfy his costs and expenses, instead of imposing a fine.” The difference in the meaning and intent of these statutes seems so obvious and clear that it will not permit of construction. We are constrained to hold that the opinion expressed in In re Pierce, supra, to the effect that “fine,’” as used in the various provisions of ch. 150, Stats. 1898, was intended to cover only the indemnity to the injured party, is erroneous and must be rejected; that the provisions of this chapter clearly warrant the imposition of a fine or imprisonment, or both, in cases where no actual loss or injury is shown; that in case of actual loss or injury resulting from the alleged misconduct, instead of imposing a fine, a sum is to be ordered paid to him to indemnify for such loss or injury; and when a fine is imposed it is in the nature of a penalty, which is to be paid into the state treasury to the credit of the school fund. Poertner v. Russel, 33 Wis. 193; State ex rel. Mann v. Brophy, 38 Wis. 413; State ex rel. Lanning v. Lonsdale, 48 Wis. 348, 4 N. W. 390; In re Milburn, 59 Wis. 24, 17 N. W. 965; Cleveland v. Burnham, 60 Wis. 16, 17 N. W. 126, 18 N. W. 190; Smith v. Weeks, 60 Wis. 94, 18 N. W. 778; Wright v. Wright, 74 Wis, 439, 43 N. W. 145; In re Rosenberg, 90 Wis. 581, 63 N. W. 1065, 64 N. W. 299 ; Warren v. Rosenberg, 94 Wis. 523, 69 N. W. 339 ; State ex rel. Meggett v. O’Neill, 104 Wis. 227, 80 N. W. 447; In re Meggett, 105 Wis. 291, 81 N. W. 419; State ex rel. Rose v. Superior Court, 105 Wis. 651, 81 N. W. 1046; Jos. Schlitz B. Co. v. Washburn B. Asso. 122 Wis. 515, 100 N. W. 832; Ralpalje, Contempts, § 21 et seq.; Langdon v. Judges, 76 Mich. 358, 43 N. W. 310; Hendryx v. Fitzpatrick, 19 Fed. 810.

Another objection suggested by appellant is that the order in question seeks to cover both a fine as for a criminal contempt and an indemnity for costs under the provisions of cb. 150, Stats. 1898. It is pertinent to observe tbat, as indicated by sec. 3480, Stats. 1898, and tbe succeeding sections, tbe procedure prescribed ’“to punisb contempts to protect tbe rights of parties in civil actions,” when committed out of tbe immediate presence of tbe court, is twofold in its character. Tbe court may, in its discretion, in certain specified cases, and in all other cases upon proper showing must, either order the defendant to show cause before the court why he should not be punished, or issue an attachment to arrest and bring him before the court to answer for his misconduct. Under sec-3481, Stats. 1898, the order to show cause can only be made in the court wherein the action or special' proceeding is pending, and is equivalent to a notice of motion, and the court thenceforth proceeds as upon a motion in such action or special proceeding. But when no such order is made and an attachment is issued, then “it shall be deemed an original special proceeding against the accused in behalf of the state upon the relation of the complainant.” It has been held that these courses of procedure are the same in form as proceedings in civil cases, while the proceedings under ch. 117, Stats. 1898, for the punishment of criminal contempts, are carried ■on from their inception as criminal prosecutions, with all the incidents of such actions, in the name of the state against the defendant. These forms aid in preserving the distinctions in prosecutions between the two classes of contempts and show tbe legislative intent on tbe subject. Tbe expression of tbe court in Haight v. Lucia, 36 Wis. 355, to tbe effect that a contempt proceeding is not to be entitled in tbe action out of which it arose seems at variance with many well-considered cases. Tbis question was, however, set at rest by tbe enactment of sec. 3481, Stats. 1808, as a new section to tbe Kevised Statutes of 1878, added subsequently to tbe decision in tbis case. Furthermore, tbe observation in tbe same case, to tbe effect that tbe injury sustained by a party through tbe alleged misconduct is not a material matter in any contempt proceeding, is not correct and must be held applicable only to proceedings to punish as for criminal contempts under cb. 117, Stats. 1898; because, as we have shown, in proceedings to punish contempts under cb. 150, Stats. 1898, tbe question of indemnity for tbe injury produced to another party must be considered, as tbe provisions of tbe chapter expressly enjoin an adjudication and recovery for such injury. In tbe instant case tbe proceeding upon which tbe order of September 7th was based was an order to show cause in tbe action after judgment in tbe same court. Tbe defendant was in default. At tbis stage of tbe proceedings it devolved on tbe court to determine whether or not tbe alleged misconduct bad been committed, and if tbe court found defendant guilty thereof it devolved upon tbe court to determine whether or not such “misconduct was calculated to or actually did defeat, impede, or prejudice tbe rights or remedies of any party in [tbe] action or proceeding,” and if it is so found, then a determination must be made as to whether or not an actual loss or injury bad resulted to any of tbe parties from such misconduct. If no such loss or injury resulted and it was so adjudged, then a fine or imprisonment must be imposed as punishment for tbe contempt, but if such loss or injury is adjudged to have resulted, then no fine or imprisonment could be imposed, but tbe court must order, that defendant pay to tbe injured party a sum to indemnify him and to pay bis costs and disbursements. Secs. ‘3489, 3490, Stats. 1898. In addition to these penalties the court may in proper cases impose those provided in sec. 3491, Stats. 1898, and coerce performance of acts and duties still in the defendant’s power to perform. The adjudication of these questions is essential and a necessary step to give validity to the proceeding. Secs. 3489, 3490, Stats. 1898; State ex rel. Chappell v. Giles, 10 Wis. 101; Shannon v. State, 18 Wis. 604; In re Gill, 20 Wis. 686; Poertner v. Russel, 33 Wis. 193; Lamonte v. Pierce, 34 Wis. 483; Witler v. Lyon, 34 Wis. 564; Heymann v. Cunningham, 51 Wis. 506, 8 N. W. 401; McEvoy v. Gallagher, 107 Wis. 331, 83 N. W. 633.

An examination of the record before us shows that the court made no such adjudication. The order directs that defendant perform a duty theretofore omitted and still in his power to perform, to pay a fine, and in default to stand committed until the order should be obeyed. The record fails to show any adjudication from which it can be ascertained that defendant was guilty of the alleged misconduct, and that the misconduct was calculated to or actually did defeat, impede, ■or prejudice the rights or the remedies of any of the parties; and there is nothing to show whether or not the alleged misconduct produced actual loss or injury. The fatality of this omission, under the provisions of the statutes, is manifest. If such a loss or injury was produced, then no fine or imprisonment could he imposed under sec. 3489, Stats. 1898, but a money indemnity only could be ordered under sec. 3490, Stats. 1898. Upon these considerations it necessarily follows that no foundation was shown upon which the orders appealed from could properly be made, and they must therefore -be vacated and declared for naught.

By the Court. — The orders appealed from are reversed, and the proceeding is remanded with directions to proceed to a retrial of the issues involved in the hearing in which the ■order of September 7, 1904, was entered.