Opinion
08-25-1924
BROWN v. BROWN.
Robert Queen, of Trenton, for the motion.
(Syllabus by the Court.)
Proceeding by Delia Brown against John Brown. On order to show cause why defendant should not be adjudged guilty of contempt of court. Order discharged.
Robert Queen, of Trenton, for the motion.
WALKER, Ch. This is a case on habeas corpus concerning the custody of an infant child of the above-named parties (petitionerand defendant), who are husband and wife. The writ was served on the defendant, who appeared and produced the child on the return day. Thereafter its custody was awarded to third persons, who were relatives, and who had been made parties to the suit. Prior to that, defendant apparently became a fugitive from justice, and afterwards had the child removed from this state to his place of abode on Staten Island, New York, where he was served with a copy of the order to show cause in this case. I say "apparently" because the affidavits tending to prove the facts recited are principally hearsay, which is not legal evidence. In re McOraven, 87 N. J. Eq. 28, 99 Atl. 619. However, the conclusion at which I have arrived permits me to assume that defendant has removed the child beyond the territorial limits of New Jersey.
And I assume too, and am of opinion, that, if the defendant in a criminal contempt case is served with due and proper notice of the proceeding against him within the jurisdiction of the court, and does not appear either in person or by counsel, but makes default, he may be condemned on ex parte affidavits, notwithstanding anything that was said in the Staley Case, infra, for it was also said in that case, concerning the rights of a defendant charged with criminal contempt (83 N. J. Eq. at page 305, 90 Atl. 1042, L. R. A. 1917B, 113, Ann. Cas. 1916B, 955), that one of those rights was that the facts by which his guilt is to be determined shall be established by the oaths of witnesses subject to cross-examination and impeachment, unless the accused either expressly or by implication waived the right, as to which point nothing was decided.
Now, for the court to sit and hear oral testimony, when defendant is absent through default, after due and legal notice, and is not represented by counsel, would be but an idle gesture, as there would be no one to cross-examine the witnesses, or to impeach their credibility, provided, however, that the affidavits had been duly served upon defendant, and were in and of themselves legal evidence. Defendant, being absent, would have a right to reply on being condemned by legal evidence only. In re McCraven, supra. If the affidavits did not, by legal evidence, make a case against him, the defendant could absent himself with confidence that there would be an entire failure of proof. Butts v. French, 42 N. J. Law, 397, 400.
Nor is there anything in Re Schmidt, 88 N. J. Eq. 21. 102 Atl. 264, to the effect that ex parte affidavits cannot be used on the hearing of a contempt, that militates against the view that they can upon defendant's default, for the Schmidt Case was one in which the defendant appeared, and the observation was made with reference to a litigated case.
This court having jurisdiction of the cause and of the parties, it was a contempt in the defendant to remove or cause to be removed out of this state the subject-matter of the litigation, namely, the child. 13 Corp. Jur. 9. And this is a criminal contempt, namely, one against the power, authority, and dignity of the court—one which is an offense against organized society itself. Staley v. South Jersey Realty Co., 83 N. J. Eq. 300, 90 Atl. 1042, L. R. A. 1917B, 113, Ann. Cas. 1916B, 955. If it were a civil contempt, that is, the refusal to obey an act commanded for the benefit of the petitioner, a proceeding remedial in character (Id. 304 ), I think there could be no doubt of the legal efficacy of the service of the order to show cause out of this state. In such case it would be but a step in the case, and defendant being in court, the manner of service, including time and place, and whether within or without the state, could be directed by the court, as is the constant practice. This view appears to be supported by the Court of Errors and Appeals in White v. White, 65 N. J. Eq. 741, 55 Atl. 739. But, as already remarked, this is a criminal contempt. And the law in such case is that the contempt proceeding is not a step in the private litigation in which it occurs. In Re Merrill, 88 N. J. Eq. 261, at page 267, 102 Atl. 400, I said that it seems that such proceeding should not be framed and treated as part of the civil cause. Upon further consideration I am of opinion that it should be an independent proceeding.
In the case at bar, the contempt proceeding has been framed in the cause between the parties, but cannot be so treated, and it should have been entitled "In re John Brown, Charged with Contempt of Court," as was done in the Merrill Case. Being a separate proceeding, it had to be started de novo, and that required a proper notice; that is, process to compel the defendant's appearance. Such process need not be a writ, but may be an order to show cause, as in this case. See In re Martin, 86 N. J. Eq. 265, 274, 99 Atl. 510. And such process must be served within this state to lawfully initiate a proceeding against a person charged with criminal contempt of court.
In Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, at page 572, Mr. Justice Field, speaking for the United States Supreme Court, observed that, since the adoption of the Fourteenth Amendment to the federal Constitution, in legal proceedings, if involving merely a determination of the personal liability of the defendant, he must be brought within the court's jurisdiction by service of process within the state, or by his voluntary appearance. And that is this cause; the defendant here is sought to be visited with a penalty either by fine or imprisonment, or both, a purely personal liability. Furthermore, as we have seen, this is a new suit, and not a step in the original proceeding. It therefore comes squarely within the rule of Pennoyer v. Neff, above recited. It has been held inthis state that a decree for alimony, which is one in personam, is void, unless the defendant was served with process within this state. McGuinness v. McGuinness, 72 N. J. Eq. 381, 386, 68 Atl. 768.
An indictment lies at common law for a criminal contempt of court (Russell on Crimes [7th Ed.] vol. 1, pp. 10, 537), and the criminal character of the act in the case before me, namely one obstructing the course of justice, clearly indicates that the proceeding for its punishment is one calling for an independent proceeding, dissociate from the civil proceeding in which the offense was committed. The case of Gompers v. Buck's Stove & Range Co., 221 U. S. 418, 31 Sup. Ct. 492, 55 L. Ed. 797, 807 (34 L. R. A. [N. S.] 874), holds that, where the sentence for a contempt is wholly punitive, it can only be properly imposed in a proceeding instituted and tried as for a criminal contempt. See Staley Case, supra, 83 N. J. Eq. at pages 306, 307, 90 Atl. 1042, L. R. A. 1917B. 113, Ann. Cas. 1916B, 955.
The views above expressed lead to the discharge of the order to show cause.