Ex parte Petrie

38 Ill. 498

• Court: Illinois Supreme Court
• Decided: April 15, 1865
• Status: Published

Opinion

Per Curiam :

We do not see sufficient reasons for granting this application. The ground presented is, that the proceedings in the Superior Court were irregular, because no notice was given the petitioner in the proceedings against him by attachment. We recognize the principle that it is of the essence of all convictions, or adjudications, that the party accused, should have an opportunity to be heard in his defense. But that principle does not controvert the regularity, in that regard, of this proceeding, for we find that the petitioner was given that opportunity in as ample a manner as was consistent with the nature of the case. It can not be said that a party has no proper notice of a proceeding against him, merely because the first intimation he receives of it is by an arrest under a process of the court. In the case, of an ordinary writ of capias ad respondendum, which is the first process in a cause under the proper state of facts, the very first notice the defendant receives of the proceeding is by-an arrest under the writ. Yet it has never been supposed that such a step in a cause contravened the rule that a party shall first have an opportunity to be heard in his defense before his rights shall be determined.

We are referred to the case of Langdon ex parte, 25 Vermont 682, as sustaining the view that the petitioner should have received notice of the application for the attachment before the writ could regularly issue. So far from sustaining such a proposition, that case very clearly vindicates the entire regularity of the proceeding in the court of chancery. In that case the party was adjudged guilty of the contempt, and a warrant-of commitment was actually awarded and issued, and the party arrested and imprisoned without any previous notice of the proceeding, or any opportunity to purge himself of the alleged contempt; and Chief Justice Redfield very properly held that before he was adjudged finally guilty of the contempt, and punished, he should have had an opportunity of being heard. In the case at bar that opportunity was given. The petitioner was not finally adjudged guilty of the contempt until he was arrested and brought before the Court for the very purpose of being heard, and to enable him to purge himself of the alleged contempt if he could do so. And having that opportunity, it was not until after he failed thus to purge himself that he was finally adjudged guilty of the contempt, and a warrant of commitment awarded.

The office of the attachment was merely to secure his presence before the court, with the view that while he might have the opportunity of being heard, yet, that he should not be enabled, in the mean time, to elude the process of the court. The regularity of the steps taken in this case is sanctioned by the express language of the learned Chief Justice in the case cited. In reference to the proceedings which may be had before the party, charged with the contempt can have the opportunity of being heard, he says: “ He may be, and often is, committed, before the conviction for the contempt. But this is done to secure his presence before the court, to answer for the contempt, when he may be convicted. These proceedings for contempt are various. The more usual course, certainly is, a rule to show cause why one should not be adjudged guilty, and punished for contempt. Sometimes an order is made nisi, that is, the party is notified that he will be adjudged guilty, &c., unless, before such a day, he show cause to the contrary. Or, he may he proceeded with, in the first instance, hy an attachment, which is something very different from this mittimus. An attachment for contempt in the first instance, for disobedience to a decree of the court of chancery, is merely a process to arrest the body of the person complained of, and bring him arrest the body of the person complained of, and bring him before the court to show cause, why he should not be adjudged guilty and punished, &c., for the contempt.

Habeas corpus refused.