In re Tracy

106 F.2d 96, 1939 U.S. App. LEXIS 2951, 1 Fed. R. Serv. 43

• Court: Court of Appeals for the Second Circuit
• Decided: July 31, 1939
• Docket: No. 403
• Status: Published

Opinions

CHASE, Circuit Judge.

While hearings were being held by a special master duly appointed in a civil suit pending in the District Court for the Southern District of New York, a subpcena in proper form was issued on February 23, 1939, requiring Dan W. Tracy to appear and testify on February 28, 1939, before said special master in the said suit. The subpoena was delivered to a process server who made due return, by affidavit, showing that he had served the subpoena upon Tracy at No. 69 West 66th Street, in the Borough of Manhattan on February 24, 1939, and had paid to him the required fee. If the affidavit of the process server is true, valid service of the subpoena was made upon Tracy within the Southern District of New York. On the return day of the subpoena, however, he failed to appear in response to it nor has he since done so.

On application made to a district judge of the Southern District of New York, an order directing Tracy to show cause why he should not be adjudged in contempt of court for failing to obey the subpoena was issued on March 8, 1939, but was not served within the required time though a futile effort to serve upon Tracy, who is a resident of Washington, D. C., was made. Thereafter a second such order to show cause was signed by the same judge on March 15, 1939, and was on March 21, 1939, duly served upon Tracy. This order required him to appear before the motion part of the District Court for the Southern District on April 11, 1939, to show cause why he should not be punished for contempt.

Tracy, having learned that the show cause order had been issued, applied on March 20, 1939, the day before the above order was served upon him, to another judge of the Southern District of New York for an oi'der upon the attox-neys for the parties in the pending suit to show cause “why an order to show cause, or other mandate, or other notice of any character, issuing or purporting to issue from this Court, or any officer thereof, requiring the said Dan W. Tracy to appear and show cause why he should not be punished for contempt in failing to respond to an alleged subpoena or mandate requiring him to appear and testify before John Kirkland Clark, Special Master in the above mentioned action, should not be quashed, vacated, dismissed and cancelled, on the ground that no such subpoena requiring the said Dan W. Tracy to appear and testify before said Special Master was ever served upon the said Dan W. Tracy, and for other good and sufficient reasons set forth in the annexed affidavits; and why the Court should not make an order declaring that no such subpoena was served upon the said Dan W. Tracy, and why he, the said Dan W. Tracy, should not have such other and further relief as to the Court may seem fit and proper; * *

This order was returnable on March 31, 1939, and was duly served as directed upon the attorneys above mentioned and upon the United States Attorney for the Southern District of New York. It came on for hearing on the return day be'fore the judge who signed it. He refused to consolidate the two orders for hearing on the return day of the one initiating the contempt proceedings but proceeded over the protest of appellants to determine the issue as to contempt upon affidavits of which several were filed in behalf of Tracy on the day of the hearing. He found that the subpoena had never been served upon Tracy; vacated and set aside the alleged service; and quashed and vacated the order to show cause, dated March 15, 1939, whereby Tracy had been required to defend the contempt charge made against him. The appellants are the plaintiffs in the suit pending before the special master who caused the subpoena for Tracy to be issued.

The procedure which was followed below was most irregular. All the issues passed upon in the order from which this appeal was taken were germane to the contempt proceeding commenced by the issuance of the show cause order of March 15, 1939, in accordance with Rule 16 of the Civil Rules of the District Court for the Southern District of New York. Orderly procedure required at least the consolidation of the two orders to show cause. The failure to do so brought about a situation where the process of the court, regular on its face and sufficient to put in issue the entire controversy, was superseded by the order of a judge of concurrent jurisdiction simply by issuing another show cause order ostensibly to test the validity of the first one and making the second returnable before the return day of the one attacked. It is obvious that if such procedure should be permitted a similar attack could be made upon the show cause order issued by the second judge and such response to such orders be carried on while time and the number of different judges available permitted. It is plain that, as a result of the anomalous situation which has been brought about, a contempt proceeding regularly commenced has been heard and decided upon its merits not in due course but upon another show cause order obtained by the alleged contemner under the guise of vacating the pending order to show cause which did properly raise all material' issues. No reason for vacating the first order was shown except, perhaps, a likelihood that it would fail because of insufficient supporting proof. Had the order appealed from been the opposite of what it was and the show cause order Tracy obtained been dismissed, the contempt proceedings would have been left still pending before the court. No order adjudging Tracy in contempt could have been made in the proceedings which resulted in the appealed order. And so it cannot be said that the appellants have ever had their day in court. They instituted proceedings which, if supported by adequate proof, would have entitled them to an order adjudging the appellee in contempt of court. They are still entitled to be heard on that issue in the sort of proceedings which at least give them a chance to secure the order they seek if they prove the contempt they assert. For this reason we cannot dispose of the appeal on the ground that the irregular procedure was merely harmless error.

While what was done did not overrule the decision of a judge of coordinate jurisdiction since no decision had been made, much of what was said in Commercial Union of America, Inc. v. Anglo-South American Bank, Ltd., 2 Cir., 10 F.2d 937, is also applicable to what was done here. Instead of overruling a decision, the order appealed from prevented any decision upon the merits in the duly instituted contempt proceedings and made them a nullity before they were even ripe for hearing in due course in the motion part before the judge who would there have been sitting on the return day. He would have had before him process which would have supported such decision as the circumstances required. For the disapproval of procedure similar to that followed below in this instance see, People v. New York Cent. & H. R. R. Co., 28 Hun, N.Y., 543; Donovan v. Donovan, Mass., 200 N.E. 884; In re Van Ness, 21 Misc. 249, 47 N.Y.S. 702.

Order reversed.