Opinion
05-22-1909
RODBERG v. LAMACHINSKY.
F. W. Fort, for complainant.
Action by one Rodberg against one Lamachinsky. On motion for attachment for contempt. Granted.
F. W. Fort, for complainant.
HOWELL, V. C. In this case an injunction was issued to enjoin the defendant from violating a covenant which he had made in restraint of trade. The writ was served upon him personally and in accordance with the practice. Shortly thereafter complaint was made to the court that he had violated the command of the writ, and an order was entered requiring him to show cause why he should not be adjudged guilty of contempt. Counsel appeared for him on this hearing, and he was adjudged to have violated the mandate of the writ, and, by way of punishment, to pay the costs of the proceeding. The proceeding took place wholly before one of the Vice Chancellors, and the defendant in open court waived any right that he might have had to have the matter reheard by the Chancellor in person. Certified copies of the order making this adjudication and of the taxed costs in pursuance thereof were served personally on the defendant, and he has hitherto neglected and refused to pay the same. Application is now made to attach him for contempt in neglecting and refusing to pay costs, and the question arises whether the proceeding should be by attachment or by an order committing him to prison.
These two methods of proceeding in contempt cases have subsisted side by side inour equity practice for many years. Generally speaking, the proceeding has been by way of order to show cause to such an extent that proceedings by way of attachment are very little resorted to, and the old proceeding by committal almost entirely forgotten. Sir George Jessel, in Sprunt v. Pugh, [1878] 7 C. D. 567, says that for most practical purposes the former distinction between attachment and committal has been abolished, and in Reg. v. County Court Judge, [1888] 36 W. R. 476, Mr. justice Wills said that there was no practical difference between committal and attachment. "One was enforced by the tipstaff of the court, and the other by the sheriff. That is all the distinction, and it comes to little, if anything." I do not find any case in our state in which the distinction is pointed out or recognized.
In certain cases it may be very important to differentiate between attachment and committal, for the reason that there is an inherent difference in the preliminary and other proceedings. In the case of an attachment out of chancery, the writ may issue on proper proofs without notice to the respondent (provided he has been served with subpoena), although the court may in its discretion require notice. The writ is bailable. It is always executed by the sheriff, and is directed to the sheriff of that county in which the respondent is, and must include all parties liable to the attachment who are in that same county. The sheriff or his officer may break into the dwelling house of the respondent to execute the writ. The subsequent proceedings appear by rule 133 et seq. They end in a warrant for commitment.
The ordinary proceeding by committal had none of these formalities. It was begun under the old practice by taking an order, upon proper affidavits, directing that the respondent stand committed for his contempt, specifying the nature of it, unless he should at a time and place named appear before the court and purge himself of the charge. This order was served personally on the alleged contemner, and if at the return day he did not make sufficient answer the order was merely made absolute, and the respondent was imprisoned or fined according to its terms. If the accused appeared, he was heard in any way that suited the convenience of the court—by an examination ore tenus, upon affidavits, or by propounding interrogatories. If he denied the contempt, the court, either for itself or by reference to a master, ascertained the fact upon the proof, either party examining witnesses by affidavit or otherwise. U. S. v. Anon. (C. C.) 21 Fed. 761. The order of committal was a final order, and was not bailable. It might be executed by the sheriff of the county, or by the sergeant at arms, or one of the ushers of the court, who might be appointed pro hac vice.
The apparent dissimilarity between these proceedings leads to an inquiry into their origin, and whether, after all, there is such a substantial difference as to make it necessary to follow the one or the other in any particular case. The question has been examined by the English Chancery Division in recent years, and the conclusion reached that there formerly was a distinction there between the two which was material in certain classes of cases. In Callow v. Young, [1887] 56 L. J. Ch. 690, there was a motion for leave to issue an attachment against the defendant for his contempt in disobeying an order made on a motion for an interim injunction which forbade the defendant to carry on a certain business. It was objected that the proper proceeding was not by attachment, but by committal, concerning which Mr. Justice Chitty says: "Under the old practice, as well as under the present practice, in order to obtain an order for committal, notice of motion must be served on the respondent; but under the old practice it was not necessary to serve notice of motion for attachment. Attachment issued at the instance of the party aggrieved, and at his own risk. But since the judicature acts the old practice has been altered, owing, probably, to the abolition of imprisonment for debt and to abuses arising from it. The rule now is that notice of motion must be served on the party sought to be attached. In this respect, therefore, attachment and committal stand on the same footing; for neither can be obtained without notice of motion. The former distinction between committal and attachment was this: Committal was the proper remedy for doing a prohibited act, and attachment was the proper remedy for neglecting to do some act ordered to be done."
The practice was likewise examined by the Court of Appeals in the case of Evans v. Noton, [1893] 1 Ch. 252, 62 L. J. Ch. 413, where it was held that an order for a writ of attachment might be made without notice personally served on the respondent. In D. v. A. & Co., [1900] 69 L. J. Ch. 382, it was held that notice of motion for committal must be personally served, and as to the distinction between the two proceedings Mr. Justice Cozens-Hardy says: "According to the old law an order of the court for the committal of the defendant was the proper remedy for the breach of an order to abstain from doing a certain thing. On the other hand, the noncompliance with an order to-do a certain thing was punished by attachment, which was issued at the instance of the party aggrieved and at his own risk. The applicant had to prove personal service of the order on the party required to do the act, and also that default has been made. On production of the order, and on proof to the satisfaction of the proper officer that there had been due service and default made, the writ issued." See, also,Harvey v. Harvey, 26 Ch. 654. The result of these cases seems to be in full accord, with the decision of Lord Eldon in Angerstein v. Hunt (1801) 6 Ves. 468, and Ellerton v. Thirsk (1820) 1 Jac. & W. 376. See, also, Worcester v. Truman, 1 McLean, 484, Fed. Cas. No. 18,043.
There is a memorandum as to the practice upon committal and attachment, prepared by Mr. Lavie, one of the registrars of the Supreme Court, which is printed as a note to the case of Evans v. Noton, supra, and which was specially approved by the judges in that case. In this note the writer declares the practice before the judicature act to have been this: "A man was committed for doing what he ought not to do, and attached for not doing what he was ordered to do." In England this distinction is now to a great extent, perhaps wholly, done away with by recent orders regulating the practice and requiring notice to the respondent of the commencement of either proceeding. Inasmuch as the attachment may issue in this state without notice, it would seem that the distinction is not wholly abrogated here.
Latterly the greater proportion of the contempt proceedings in chancery in this state have been commenced by entering an order to show cause why the respondent should not be adjudged guilty of contempt, and upon this simple proceeding all the questions are adjudicated. Judge Hammond, of the federal bench, in the case of U. S. v. Anon. (C. C.) 21 Fed. 761, thus states the modern practice in the federal courts. After stating the old procedure, he says: "But this method of procedure has, in modern practice, and since our federal equity rules were promulgated, fallen somewhat into desuetude, and has been superseded by substituting for an order of commitment nisi a rule to show cause why the party should not be committed. This rule to show cause why an attachment should not issue, or an order of commitment be made, was a familiar one to both courts of law and equity, and was used where the evidence was not before the court as a mode of preliminary inquiry to determine whether any proceedings in contempt should be taken. It was, however, very conveniently converted into a procedure for determining the whole matter on its merits, and the court, having the party before it, proceeded, without technical practice, to try the entire question on this preliminary inquiry. Hence the answer of the respondent to such a rule in a court of law came to have the same effect as his answer to interrogatories in more regular practice. But no more in this modern practice than in that which is more technical can the respondent's answer be given that effect in a court of equity."
The substitution of the order to show cause for the old order of committal, so learnedly discussed by Judge Hammond in that case, seems to have been made in this court. To illustrate the extent to which the distinction between the two methods of procedure has been disregarded in this court I will cite two cases, Fraas v. Barlement, 25 N. J. Eq. 84, and Thorpp v. Field, 25 N. J. Eq. 166, both heard at May term, 1874, and both being applications to punish defendants for the violation of injunctions. In the first case the court was moved to issue an attachment; in the other, for an order to show cause why the defendant should not be committed for his contempt. In neither case was any question made as to the procedure. Many other cases may be cited from our Reports, showing an utter neglect to observe the distinction which now appears to have been in the English practice.
The statutes—sections 69 and 82 of the chancery act of April 3, 1902 (P. L. pp. 534, 538)—do not affect the practice or point out any particular course which must be taken at all events. Section 69 authorizes the Chancellor ("he may"), on motion, supported by proof, to issue an attachment against any person charged with disobedience to any injunction, and prescribed penalty. Section 82, which has remained in the statute unchanged since 1799 (Pat. Laws 1703-1800, p. 434, § 53), gives the court power to enforce obedience to its process, rules, and orders by the imposition of a fine of not over $50 and imprisonment until the mandate be obeyed and the fine paid. These statutes leave the compulsory procedure untouched. If they make any change whatever, it is to allow an attachment to be issued at the discretion of the court, instead of an order for committal or an order to show cause in the one case of the violation of an injunction. The difference between the order of committal under the old practice and the order to show cause under the more modern methods is one of mere form. The order of committal was in form an order for the incarceration of the respondent, unless he showed cause against it at a future time and at a specified place. It will be noted that this order is an adjudication nisi. The modern order to show cause calls upon the respondent to appear at a future time and at a specified place, then and there to show cause why he should not be adjudged guilty of contempt. The bearing in either case is the same, the final result is the same, and it would thus appear that there is no substantial difference between them.
Following out the distinction between the proceeding by way of attachment and the proceeding by way of order to show cause in the case at bar, it appears that the respondent is now guilty of a double contempt. First, he did what he was commanded not to do, and so became liable for an order for committal or an order to show cause, although on the adjudication against him he was merely required to pay costs by way of penalty. Next, he refused to do what he was commanded to do, viz., to pay costs, for which he is liable to be attached according to the practice now being discussed. Thefirst adjudication does not seem to have impressed itself upon the mind of the respondent. I will advise an order that an attachment issue against him forthwith, under and by virtue of which he may be at once arrested and made to understand that the breach of the injunction is followed by unpleasant consequences.
It will be observed that the foregoing discussion relates only to the practice in equity causes. There always was a difference between contempt proceedings in the Court of Chancery and the similar proceeding in the common-law courts. Sir William Blackstone, 4 Com. 286, states that, if the judges upon the affidavit see sufficient ground to suspect that a contempt has been committed, they may either make a rule on the suspected party to show cause why an attachment should not issue against him, or, in very flagrant cases the attachment might issue in the first instance. But there was this great and fundamental distinction: Upon the submission of interrogatories it became the duty of the defendant to answer, and if he upon his oath denied the contempt he was discharged, and the complaining party was left to his ordinary common-law remedies. Whether this practice still prevails in our common-law jurisdiction it is unnecessary to decide.