Clerks, P. J.
I. The objection has been made, that the proper course for the defendant in this case was to appeal from the order of commitment, and, having neglected to do so within the time allowed, that he is now without remedy. But this motion was not made for the purpose of reviewing the decision of the special term on the merits, but for the purpose of setting it aside, or revoking it on the ground of irregularity. The question before us is not whether the defendant was really guilty of the contempt with which he was charged, but whether the proceeding, under which he was condemned, was in conformity with the rules and practice which the law prescribes for the convenient administration of justice or for the security of the citizen. In other words, we are asked, not to consider the matter upon which the commitment was ordered, but the manner in which it was con[107]*107ducted; precisely as when a judgment is recovered without a summons issued against a defendant, or when a trial is had without notice,-the remedy is not by appeal to reverse it, but by motion to set it aside for irregularity, or to declare it void as a nullity.
The question, therefore, for our consideration, on this motion, is not whether the defendant E. Davison, on whose behalf it is made, was guilty of a contempt in disobeying the order of the court, but whether the proceedings under which he was found guilty were such as the law interposes for the purpose of protecting every citizen in the enjoyment of his personal liberty until he has an opportunity of being heard in his defense.
The provisions of the revised statutes relative to contempts are chiefly a summary of the common law upon that subject.
The provisions and principles of both take especial care that the alleged offender shall have personal notice of the proceedings; that he shall be brought in person before the court; and that interrogatories shall be propounded, to which he shall have an ample opportunity of filing answers. Those proceedings are not a constituent part of the actions in which he may be a party, but constitute a quasi criminal prosecution against him for an alleged offense not only against his adversary but against the interests of justice and the majesty of the law. In short, it partakes both of the nature of a private injury and a public crime.
Undoubtedly, in Yates v. Lansing, (9 John. 418,) Senator Platt states that the chancellor had a right to dispense with the examination by interrogatories if, in his judgment, the proof by affidavits was sufficient in itself, and of such credit as' that a denial by the party accused, under oath, would not countervail the affidavits. Whether this is sufficiently supported by authority and principle, or not, it is scarcely applicable to the present case. It was in fact a dictum. In Yates v. Lansing the commitment by the chancellor did not come before the supreme court on review, but incidentally, in an [108]*108action against the chancellor of the state to recover the penalty of $1250 under the 5th section of the habeas corpus act, (1 R. L. 355,) declaring that no person, who shall be set at large upon any habeas corpus, shall be again imprisoned for the same offense, &c., and that “ if any person shall knowingly recommit or imprison any person so set at large, he shall forfeit to the party aggrieved $1250.” The court, therefore, in that case, had no right to inquire, nor was it necessary that they should inquire, into the proceedings in chancery prior to the conviction. The court saw on the face of the return an adjudication or conviction for a contempt, and a commitment in pursuance of such conviction. They were not bound to inquire by what means the court of chancery arrived at the adjudication; they could only act judicially upon the fact's appearing on the return. But the case before us is an appeal from an order made on an application to set aside the commitment against E. Davison, for irregularity ; and the alleged grounds of that irregularity are, that the order to show cause was not personally served on the defendant ; that in terms the order was defective; and that he could not, even if he was properly before the court, be committed until interrogatories were filed, and he should have .an opportunity of answering them.
I think the personal service of- the order to show cause, or personal appearance in court in compliance with it, is indispensable. Otherwise a citizen may be deprived of one of his dearest rights—that of personal liberty—without being heard, or even without being aware that his liberty was threatened. I am aware that in The Albany City Bank v. Schermerhorn, (9 Paige, 374,) the chancellor says: “ Where the party proceeds by an order to show cause, copies of the order &c. must be served on him or his solicitor ; and if the party accused does not appear on the day appointed, the court may at once proceed to make a final decision, that the accused has been guilty of the contempt charged.” . In that case interrogatories and answers were filed, and the question whether [109]*109the service of the order to show cause on the solicitor alone was sufficient, was not distinctly presented; and the chancellor, in making the statement referred to, gave, by way of introduction to the question before him, what he considered a resume of the revised statutes, upon the mode of bringing a party before the court for alleged contempt. The 5th section of title 13, chapter 8, part 3d, says the court shall either grant an order on the accused party to show cause why he should not be punished for the alleged misconduct, or shall issue an attachment to arrest the party. It says nothing of the mode of serving the order to show cause. Hor does it provide that the service shall be a substituted one. Are we then to presume, in a matter in which personal liberty is concerned, where a person is accused of an offense which may be punished by incarceration in a prison for an indefinite time, that the legislature intended a mode of service might be adopted, by which a citizen may be subjected to this punishment without being heard ? The presumption is quite the other way. The presumption clearly is that it was never intended to change the well settled principles of the common law and of magna charta, which emphatically declare that no man shall be condemned unheard, But there is a provision in another chapter of part 3d, article 1, title 2, also relating to contempts, section 10, which expressly says, “con-tempts committed in the immediate view and presence of the court may be punished summarily; in other cases the party charged shall be notified of his accusation, and have a reasonable time to make his defense.” Is it a sufficient compliance with this provision, that the service of the order to show cause may be on the attorney or solicitor for the party in the action ? The attorney or solicitor is only authorized to appear and act for the party in all the proceedings which constitute a part of the action. He has no more authority to appear for the party in other proceedings, not forming essentially a part of the action, particularly when they partake of a criminal character and involve his liberty, than he would [110]*110have authority to appear to answer or plead guilty to an indictment against his client for an assault and battery committed by him on his adversary in consequence of some dispute relative to the questions at issue in the civil action.
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Clerks, P. J.
I. The objection has been made, that the proper course for the defendant in this case was to appeal from the order of commitment, and, having neglected to do so within the time allowed, that he is now without remedy. But this motion was not made for the purpose of reviewing the decision of the special term on the merits, but for the purpose of setting it aside, or revoking it on the ground of irregularity. The question before us is not whether the defendant was really guilty of the contempt with which he was charged, but whether the proceeding, under which he was condemned, was in conformity with the rules and practice which the law prescribes for the convenient administration of justice or for the security of the citizen. In other words, we are asked, not to consider the matter upon which the commitment was ordered, but the manner in which it was con[107]*107ducted; precisely as when a judgment is recovered without a summons issued against a defendant, or when a trial is had without notice,-the remedy is not by appeal to reverse it, but by motion to set it aside for irregularity, or to declare it void as a nullity.
The question, therefore, for our consideration, on this motion, is not whether the defendant E. Davison, on whose behalf it is made, was guilty of a contempt in disobeying the order of the court, but whether the proceedings under which he was found guilty were such as the law interposes for the purpose of protecting every citizen in the enjoyment of his personal liberty until he has an opportunity of being heard in his defense.
The provisions of the revised statutes relative to contempts are chiefly a summary of the common law upon that subject.
The provisions and principles of both take especial care that the alleged offender shall have personal notice of the proceedings; that he shall be brought in person before the court; and that interrogatories shall be propounded, to which he shall have an ample opportunity of filing answers. Those proceedings are not a constituent part of the actions in which he may be a party, but constitute a quasi criminal prosecution against him for an alleged offense not only against his adversary but against the interests of justice and the majesty of the law. In short, it partakes both of the nature of a private injury and a public crime.
Undoubtedly, in Yates v. Lansing, (9 John. 418,) Senator Platt states that the chancellor had a right to dispense with the examination by interrogatories if, in his judgment, the proof by affidavits was sufficient in itself, and of such credit as' that a denial by the party accused, under oath, would not countervail the affidavits. Whether this is sufficiently supported by authority and principle, or not, it is scarcely applicable to the present case. It was in fact a dictum. In Yates v. Lansing the commitment by the chancellor did not come before the supreme court on review, but incidentally, in an [108]*108action against the chancellor of the state to recover the penalty of $1250 under the 5th section of the habeas corpus act, (1 R. L. 355,) declaring that no person, who shall be set at large upon any habeas corpus, shall be again imprisoned for the same offense, &c., and that “ if any person shall knowingly recommit or imprison any person so set at large, he shall forfeit to the party aggrieved $1250.” The court, therefore, in that case, had no right to inquire, nor was it necessary that they should inquire, into the proceedings in chancery prior to the conviction. The court saw on the face of the return an adjudication or conviction for a contempt, and a commitment in pursuance of such conviction. They were not bound to inquire by what means the court of chancery arrived at the adjudication; they could only act judicially upon the fact's appearing on the return. But the case before us is an appeal from an order made on an application to set aside the commitment against E. Davison, for irregularity ; and the alleged grounds of that irregularity are, that the order to show cause was not personally served on the defendant ; that in terms the order was defective; and that he could not, even if he was properly before the court, be committed until interrogatories were filed, and he should have .an opportunity of answering them.
I think the personal service of- the order to show cause, or personal appearance in court in compliance with it, is indispensable. Otherwise a citizen may be deprived of one of his dearest rights—that of personal liberty—without being heard, or even without being aware that his liberty was threatened. I am aware that in The Albany City Bank v. Schermerhorn, (9 Paige, 374,) the chancellor says: “ Where the party proceeds by an order to show cause, copies of the order &c. must be served on him or his solicitor ; and if the party accused does not appear on the day appointed, the court may at once proceed to make a final decision, that the accused has been guilty of the contempt charged.” . In that case interrogatories and answers were filed, and the question whether [109]*109the service of the order to show cause on the solicitor alone was sufficient, was not distinctly presented; and the chancellor, in making the statement referred to, gave, by way of introduction to the question before him, what he considered a resume of the revised statutes, upon the mode of bringing a party before the court for alleged contempt. The 5th section of title 13, chapter 8, part 3d, says the court shall either grant an order on the accused party to show cause why he should not be punished for the alleged misconduct, or shall issue an attachment to arrest the party. It says nothing of the mode of serving the order to show cause. Hor does it provide that the service shall be a substituted one. Are we then to presume, in a matter in which personal liberty is concerned, where a person is accused of an offense which may be punished by incarceration in a prison for an indefinite time, that the legislature intended a mode of service might be adopted, by which a citizen may be subjected to this punishment without being heard ? The presumption is quite the other way. The presumption clearly is that it was never intended to change the well settled principles of the common law and of magna charta, which emphatically declare that no man shall be condemned unheard, But there is a provision in another chapter of part 3d, article 1, title 2, also relating to contempts, section 10, which expressly says, “con-tempts committed in the immediate view and presence of the court may be punished summarily; in other cases the party charged shall be notified of his accusation, and have a reasonable time to make his defense.” Is it a sufficient compliance with this provision, that the service of the order to show cause may be on the attorney or solicitor for the party in the action ? The attorney or solicitor is only authorized to appear and act for the party in all the proceedings which constitute a part of the action. He has no more authority to appear for the party in other proceedings, not forming essentially a part of the action, particularly when they partake of a criminal character and involve his liberty, than he would [110]*110have authority to appear to answer or plead guilty to an indictment against his client for an assault and battery committed by him on his adversary in consequence of some dispute relative to the questions at issue in the civil action. The proceeding relative to the contempt is a new proceeding, requiring new authority, if indeed the personal appearance of the party can be at all dispensed with. The proper course to pursue, if the party cannot be served with an order to show cause, is to apply for an attachment against the party for the purpose of compelling his attendance before the court, which, like the order to show cause, is a preliminary process; if the sheriff cannot find Mm, alias and pluries attachments may be issued against him; and if these are not available, in consequence of the absence, concealment or absconding of the party, the court has done all it could do, and justice fails, as it unfortunately does fail, in many other instances.
II. The proceedings are defective even if the substituted service were permissible. In proceedings of this nature, the directions of the statute must be strictly pursued. The order to show cause, allowed by the statute, is to show cause why the party should not be punished for the alleged misconduct ; succinctly and plainly specifying the nature of the application. The order in this case cites the defendants to appear and show cause “ why an attachment should not be issued against them, and they be punished for the alleged contempt and misconduct.” This may very easily be understood by the defendant as meaning that an attachment would be applied for as preliminary to proceedings for the punishment of the alleged misconduct; and he might justly have conceived—as the statute provides when a party is brought before the court upon an attachment, that interrogatories shall be filed against him, to which he would have the right of making written answers on oath-—that if he even neglected to appear on that order to show cause he would, when brought before the court on the attachment, have an opportunity of [111]*111being heard and presenting sufficient excuses for not complying with the decree.
III. Ooukl the filing of interrogatories be dispensed with, even if the order to show cause was correct on its face, and properly served ?
There are very few exceptions to this mode of procedure, in the books; and those exceptions are confined to cases where the party admits the misconduct, in open court, or where, if he denied it, the denial of the facts would nevertheless leave him guilty of the offense. But I doubt whether under any circumstances, except in the cases specified in the statute, interrogatories can now be dispensed with. Those exceptions are where the misconduct has been committed in the presence of the court, and where the party has disobeyed a subpoena or a rule or order for the payment of money. The 19th section of the act provides “when any defendant arrested upon an attachment shall have been brought into court, or shall have appeared therein, the court shall cause interrogatories to be filed, requiring his answers thereto.” How considering that the almost invariable practice under the common law was to file interrogatories and require answers, before the party could be finally sentenced, and that this right is as essential to justice and liberty when he appears on an order to show cause, or in any other way, as where he is brought before the court on an attachment, it is safe to supjDOse that in all cases, except those expressly specified, the legislature intended that interrogatories should be filed before the party could be condemned. At all events the statute does not, where the proceeding is by an order to show cause, expressly dispense with this ancient, constitutional and well established mode of procedure, designed for the protection of the personal liberty of citizens,
IV, Were it not for the importance of the subject, it -would have been scarcely necessary to refer to the foregoing objections ; because there is one objection remaining, which, if all the others were untenable, would be undoubtedly fatal, and [112]*112that is that the court had no jurisdiction of the person. The defendant E. Davison was never before the court, in this matter. As I have already said, it is a new proceeding; and the personal appearance of the party, before he can be proceeded against, and condemned, is as essential as if he was tried, convicted and sentenced for the crime of grand larceny. Among the indispensable requirements for acquiring jurisdiction of the person, in a proceeding for contempt, is the presence of the defendant in court, either voluntarily or by compulsion, under process of attachment. The necessity of this is so obvious that it seems scarcely necessary to refer to authority; but to save the necessity of quoting a list of cases upon the subject, it will be sufficient to refer to The People v. Nevins, (1 Hill, 158.)
[New York General Term,
September 16, 1861.
The order of commitment, I think, should be set aside as irregular, and the defendant E. Davison be discharged from imprisonment.