Lakewood Trust Co. v. Lawshane Co.

Supreme Court of New Jersey

Lakewood Trust Co. v. Lawshane Co.

140 A. 334, 102 N.J. Eq. 270, 1 Backes 270, 1928 N.J. LEXIS 584

DecidedFebruary 6, 1928

StatusPublished

This text of 140 A. 334 (Lakewood Trust Co. v. Lawshane Co.) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lakewood Trust Co. v. Lawshane Co., 140 A. 334, 102 N.J. Eq. 270, 1 Backes 270, 1928 N.J. LEXIS 584 (N.J. 1928).

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Opinion

Per Curiam.

This is an appeal from an order made on the petition of John S. Applegate, Jr., receiver of the Lawshane Company, adjudging one Louis Shane in contempt for failing to obey the mandate of a previous order of the court of chancery requiring him to pay to the receiver the sum of $19,370.32, and directing that he be committed to the county jail until he shall have paid this sum to the receiver, unless the chancellor shall see fit sooner to discharge him. Rrom this order Shane has appealed, and the principal contention made on his behalf is that it was without legal justification, because of the fact that Shane in his answer to the petition of the receiver set up that, in consequence of certain pecuniary losses specifically stated in his answer, and other pecuniary losses, which he had incurred prior to the making of the order which he was alleged to have contemned, he was unable to pay the receiver the sum mentioned in the latter order, or any other sum; and, by his affidavit attached to his answer, he declared that the matters and things contained therein were all of them true. Our examination of the record before us shows that this sworn statement was not controverted by the receiver by any subsequent pleading or by the submission of any contradictory testimony. This being so, the facts sworn to must be accepted as true. So accepting them, it seems to us that the order adjudging him guilty of contempt was improvidently made. In the case of Grand Lodge, Knights of Pythias, v. Jansen, 62 N. J. Eq. 737, we held that “on an application to the court of chancery to obtain, in proceedings for contempt, a remedial order directing the imprisonment of the defendant until he shall pay a money decree, it is proper for the defendant to show his inability to pay, and, if that he shown, an order for such imprisonment ought not to be made.” The application of that principle led to a reversal *272 of the order of contempt, which was the subject of review in the cited case.

We consider this case controlling on the present review, and that, for this reason, the order now before us should be reversed. This conclusion, however, is without prejudice to the right of the receiver to renew his application before the court of chancery, and, on the hearing thereof, to submit such proofs as he may have of Shane’s ability to comply with the mandate of the order which he is alleged to have contemned; and also to examine him under oath, as to the truth of the facts set up in his answer.

As this case is to be remitted to the court of chancery for further procedure along the lines which we have indicated, we deem it advisable to add that we consider the contention of the appellant that the order appealed from violates article 1, section 17, of our constitution, which declares that "no person shall be imprisoned for debt in any action or on any judgment founded upon contract, unless in eases of fraud,” to be without merit. It is directly opposed to our declaration in the case of Adams v. Adams, 80 N. J. Eq. 175.

For affirmance — Black, J. 1.

For reversal — -The Chief-Justice, Trehchard, Parker, Mihturn, Kalisch, Katzenbach, Campbell, Lloyd, White, Yah Buskirk, Kays, Hetfield, Dear, JJ. 13.

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Per Curiam.

This is an appeal from an order made on the petition of John S. Applegate, Jr., receiver of the Lawshane Company, adjudging one Louis Shane in contempt for failing to obey the mandate of a previous order of the court of chancery requiring him to pay to the receiver the sum of $19,370.32, and directing that he be committed to the county jail until he shall have paid this sum to the receiver, unless the chancellor shall see fit sooner to discharge him. Rrom this order Shane has appealed, and the principal contention made on his behalf is that it was without legal justification, because of the fact that Shane in his answer to the petition of the receiver set up that, in consequence of certain pecuniary losses specifically stated in his answer, and other pecuniary losses, which he had incurred prior to the making of the order which he was alleged to have contemned, he was unable to pay the receiver the sum mentioned in the latter order, or any other sum; and, by his affidavit attached to his answer, he declared that the matters and things contained therein were all of them true. Our examination of the record before us shows that this sworn statement was not controverted by the receiver by any subsequent pleading or by the submission of any contradictory testimony. This being so, the facts sworn to must be accepted as true. So accepting them, it seems to us that the order adjudging him guilty of contempt was improvidently made. In the case of Grand Lodge, Knights of Pythias, v. Jansen, 62 N. J. Eq. 737, we held that “on an application to the court of chancery to obtain, in proceedings for contempt, a remedial order directing the imprisonment of the defendant until he shall pay a money decree, it is proper for the defendant to show his inability to pay, and, if that he shown, an order for such imprisonment ought not to be made.” The application of that principle led to a reversal *272 of the order of contempt, which was the subject of review in the cited case.

We consider this case controlling on the present review, and that, for this reason, the order now before us should be reversed. This conclusion, however, is without prejudice to the right of the receiver to renew his application before the court of chancery, and, on the hearing thereof, to submit such proofs as he may have of Shane’s ability to comply with the mandate of the order which he is alleged to have contemned; and also to examine him under oath, as to the truth of the facts set up in his answer.

As this case is to be remitted to the court of chancery for further procedure along the lines which we have indicated, we deem it advisable to add that we consider the contention of the appellant that the order appealed from violates article 1, section 17, of our constitution, which declares that "no person shall be imprisoned for debt in any action or on any judgment founded upon contract, unless in eases of fraud,” to be without merit. It is directly opposed to our declaration in the case of Adams v. Adams, 80 N. J. Eq. 175.

For affirmance — Black, J. 1.

For reversal — -The Chief-Justice, Trehchard, Parker, Mihturn, Kalisch, Katzenbach, Campbell, Lloyd, White, Yah Buskirk, Kays, Hetfield, Dear, JJ. 13.

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Bluebook (online)

140 A. 334, 102 N.J. Eq. 270, 1 Backes 270, 1928 N.J. LEXIS 584, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lakewood-trust-co-v-lawshane-co-nj-1928.