Opinion
No. 65-381.
11-05-1927
In re HAYDEN.
(Syllabus by the Court.)
In the matter of Joseph P. Hayden, charged with contempt of court. On rule to show cause why respondent Hayden should not be adjudged guilty of contempt. Respondent to be attached and brought before court for judgment.
WALKER, Chancellor. Upon the return of a rule to show cause why the respondent, Joseph P. Hayden, a solicitor in chancery, should not be adjudged guilty of contempt of the power, authority, and dignity of the Court of Chancery of New Jersey, in falsely and fraudulently uttering and delivering a supposititious decree and certification thereof to Gertrude Griffith, falsely called Ferme, and by false and fraudulent pretenses procuring from her the sum of $300, and why he should not forthwith repay to her such sum, Hayden, the respondent, did not appear. He had been duly served with true and certified copies of the affidavits upon which the order to show cause was founded, and of the order, agreeably to the directions thereof, and on his default an order was made and entered adjudging him to be guilty of contempt of this court in the matters alleged against him. The order contained a provision that he should forthwith repay to Mrs. Griffith the sum of $300, and that, in default thereof, a warrant should issue to the sheriff of Hudson county to take his body and him safely keep until such payment to the clerk in chancery, for the use of Mrs. Griffith, or to the sheriff for him. The reason he was, on default of payment to Mrs. Griffith, afterwards ordered to pay to the clerk for her use, or to the sheriff for the clerk, when the latter had the writ, was so that the Chancellor could keep supervision over the question of repayment, and prevent the issuance of a warrant in case it had not been made to the party. A warrant was accordingly issued, because of Hayden's default, and on the following day he sent the money to the clerk in chancery, which absolved him from imprisonment on that warrant. The order provided for an adjournment for two weeks, for the purpose of punishment. That order was, by sundry continuances, adjourned, and the defendant commanded to be and appear upon the adjourned day to receive the judgment of the court. He has not appeared, and apparently does not intend to do so, and there will be no further adjournments; but an appropriate warrant will be issued commanding the sheriff of Hudson to bring Hayden here for the purpose of receiving sentence.
This was both a civil and a criminal contempt; civil in favor of the petitioner, Mrs. Griffith, for the return of her money; criminal to vindicate the power, authority, and dignity of the court. This is one of the most flagrant contempts that has recently been committed against this court. And nothing short of a term of imprisonment will be anything like adequate justice to mete out to this derelict defendant.
This, as said, was both a civil and a criminal contempt, and, while a respondent cannot be sentenced to imprisonment in his absence, as will hereafter more fully appear, and while it may be questioned as to whether the court has power to try him at all for the criminal contempt without a personal appearance, neverthless, I have considered that matter, and have decided that the power exists.
In Brown v. Brown, 96 N. J. Eq. 428, at page 429, 126 A. 36, 37, I took occasion to say:
"If the defendant in a criminal contempt case is served with due and proper notice 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 (83 N. J. Eq. 300 [90 A. 1042, L. R. A. 1917B, 113, Ann. Cas. 1916B, 955]), for it was also said in that case, concerning the rights of a defendant charged with criminal contempt (83 N. J. Eq. 305 [90 A. 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 (87 N. J. Eq. 28 ). 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."
When I speak of legal evidence in this connection, I mean, of course, affidavits that in and of themselves make a complete factual case against the defendant. The affidavits in this matter, which were duly served, make such a case. The civil feature of the contempt, namely, the order to make the contemptuous solicitor pay back to his client the money which he obtained from her, is, of course, within the jurisdiction of this court, and an order for such repayment was made and was complied with by the respondent.
It is to be observed that I said in the Brown Case, speaking of the Staley Case, that the Court of Errors and Appeals said that the guilt of the defendant is to be established by the oath of witnesses, "unless the accused either expressly or by implication waives the right." It is true that the Court of Errors and Appeals said that they decided nothing as to that point, and, as I said in the Brown Case, if the court should sit and hear oral testimony when the defendant is absent after due and legal notice, and is not represented by counsel, it would be but an idle gesture, as there would be no one to cross-examine witnesses or impeach their credibility. A party who has been given due opportunity to appear and be heard cannot complain if he is condemned in his absence upon sufficient proof to legally establish the fact according to the ordinary processes of the court; and trial by affidavits is a particular feature of the Court of Chancery. In this case, as already said, the respondent was duly served, but chose not to appear upon the return of the order to show cause, which was due process. In every judicial procedure it is essential that the person whose rights are to be affected should be a party and have an opportunity of making a defense; and he must be brought in by process, which need not be a subpœna or other writ, but may be an order or notice. In re Martin, 86 N. J. Eq. 265, 274, 98 A. 510. Of course, these proceedings may be summary.
A defendant in a criminal contempt of the Court of Chancery cannot complain generally of a judgment pronounced against him in his absence, after being duly served, etc. He cannot be punished corporally except upon his presence before the court, when he may urge any matter of defense, one of which is that he demands to be confronted with witnesses so that he may cross-examine them. But he may, as hereafter will appear, be sentenced to a fine upon the conviction already had. In West v. State, 22 N. J. Law, 212, at page 229, it is said that, except upon a capital charge, it is not necessary that the defendant should be asked if he has anything to offer why judgment should not be pronounced against him; that it is, however, necessary in all cases where corporal punishment is to be inflicted upon a defendant that he should be personally present before the court at the time of pronouncing sentence, and it should so appear in the record. But in Warner v. State, 56 N. J. Law, 686, 29 A. 505, 44 Am. St. Rep. 415, it was held that the reason for inquiring of a prisoner before judgment in capital cases if he has anything to say why sentence should not be pronounced has disappeared since prisoners have been permitted to have counsel. And Mr. Justice Reed in the opinion, at page 695 (29 A. 505), says, in effect, that the theory that the court is defendant's counsel was a fiction. Now, because a defendant no longer has to be asked in any case whether he has anything to say why sentence should not be pronounced against him, that does not mean that he may not say anything that would show the fact. He still has that right. And in 2 Hawkin's Pleas of the Crown, 633, it is laid down in section 17 that the court may assess a fine, but cannot award any corporal punishment against a defendant, unlesshe be actually present in court. See, also, 1 Chit. Cr. Law, 478. And imprisonment is corporal punishment. 3 Bouv. Law Dic. (Rawle's 3d Rev.) 2770.
All this results in showing that the court may condemn a man on a prosecution for a criminal contempt, if, after being duly served, he remains absent from the court, and may assess a fine upon him; but that, if, when brought in by process, the court proposes to imprison him, he may then by analogy to motion in arrest of judgment claim that he has not been confronted with the witnesses against him and afforded an opportunity to cross-examine them, which this court would even then grant, to the end that he should only be imprisoned in a proceeding conducted according to the course of the criminal law in that regard.
In State v. Lee, 100 N. J. Law, 201, 126 A. 420, it is laid down that the motion in arrest of judgment, based upon the assertion that the indictment does not charge a crime, should always be granted when an inspection of the record shows that the assertion is justified by the fact. And in State v. Bove, 98 N. J. Law, 350, 116 A. 766, it is held that the judgment upon a conviction under a criminal indictment will only be arrested for an error apparent upon the face of the record. And the record will show no examination of witnesses in defendant's presence, and will also show that the fault was his; that by not appearing and objecting he had waived his right, up to the point where he protested against imprisonment in the absence of such examination, if, in fact, he shall get to that. To allow the defendant, on his appearance and motion, an opportunity to be confronted with the witnesses and cross-examine them will still give him the right without which he cannot be imprisoned, and this would be very like the case of the jurisdiction of the Supreme Court to review certain matters on certiorari, for it has been held in that court, in chancery, and in the Court of Errors and Appeals, that the raising by the Legislature of an intermediate tribunal to pass on the question does not destroy the certiorari jurisdiction, because the decision of the special statutory tribunal or agency is reviewable, not by appeal, but by certiorari in the Supreme Court; and thus is the jurisdiction of the court preserved, and so here. See Florenzie v. East Orange, 88 N. J. Law 438, 440, 97 A. 260; In re Dittman's Ex'rs, 87 N. J. Eq. 297, 101 A. 66; In re Prudential Ins. Co., 82 N. J. Eq. 335, 88 A. 970; In re Roebling's Estate, 91 N. J. Eq. 72,108 A. 359.
The defendant in this case has further waived the manner of trial against him in his absence because he has communicated with this court and sent in an affidavit made by himself entitled in this matter, indorsed "Joseph P. Hayden, Solr. pro se, Chamber of Commerce Bldg., Jersey City, N. J.," which affidavit was taken before a notary public October 2, 1927, 13 days after the adjudication against him, reached here October 4, 1927, and was filed in the cause on that day. He knew the return day of the order; and also knew the result of the proceeding which was quite widely published, saying in his affidavit that he has received newspaper items concerning the case. The affidavit, which is amazing, is herewith published. It is as follows:
In Chancery of New Jersey.
"In the Matter of Joseph P. Hayden, Charged with Contempt of Court.
Answering Affidavit.
"State of New Jersey, County of Hudson—SS.: "Joseph P. Hayden, of full age, being duly sworn according to law upon his oath, doth depose and say: I am the respondent in the above-entitled matter. I have read the affidavit of one Gertrude Griffith, also referred to as Gertrude Perme, and I do positively state that the allegations in said affidavit are wholly and entirely untrue and false; particularly that part of said affidavit wherein it is alleged that I delivered, or caused to be delivered, to the said Gertrude Ferme a fraudulent and false decree of divorce or annulment, is utterly false and unfounded. I have also read the affidavit purporting to have been signed and sworn to by one Grace Mulhall, and I do state that the contents of said affidavit are absolutely false and untrue. I have also read the affidavit of one Appelgate, clerk in said Court of Chancery, and, having no knowledge or information as to the contents therein, I deny the truth of allegations contained therein. I further state that the reason, for my nonappearance upon the 20th day of September, last, is because I was advised that the above matter would be referred to a Vice Chancellor for trial and determination. I have received no notice, other than newspaper items, as to any further appearance or hearing.
"Joseph P. Hayden.
"Sworn to and subscribed before me this 3d day of October, 1927.
"James F. McGovern, "A Notary Public of New Jersey."
It will be observed that Hayden asserts in the affidavit that he positively states that the allegations in Mrs. Griffith's affidavit are wholly and entirely untrue and false; and that the affidavit of Mrs. Mulhall, her sister, who testified in an affidavit in this cause that she was present when the false and fraudulent decree was delivered to her sister by Hayden, is also false and untrue; and also he denies the truth of the allegations contained in the affidavit of Mr. Appelgate, chief clerk of the chancery office, who only stated that he had searched the records of the court, and found no such case as Griffith, otherwise Ferme v. Ferme, and that the purported certified copy of the decree which was before him was false. It is also to be observed that he (Hayden) does not state what is the truth as to any of these matters which he denies, and he makes the absurd statement that the reason for his nonappearance upon the returnday of the order was because he was "advised" that the matter would be referred to a Vice Chancellor for trial. Of course, his affidavit is in almost every respect untrue; also, and of course, this was well known to him.
Let a writ of attachment issue to the sheriff of Hudson county commanding him to attach the body of Joseph P. Hayden, if he can find and apprehend him, so as to have him before this court forthwith, to receive its judgment by way of punishment herein in that behalf. This is not a bailable writ, but a warrant of arrest. The writ of attachment issues in any contempt case. Dick. Ch. Prec. (Rev. Ed.) p. 38 et seq.; Supp. p. 113 et seq. I find no other writ out of chancery to arrest a man and bring him before the court save an attachment. I find no authority for the issuance of a bench warrant. That remedy appears to pertain only to the courts of law, although I have known it to be issued out of chancery, and it may be lawful. However, an attachment is better, because the recognized form.
This case does not in any wise run counter to O'Rourke v. Cleveland, 49 N. J. Eq. 577, 25 A. 367, 31 Am. St. Rep. 719. That was exclusively a criminal contempt, and the court below imposed costs and a counsel fee upon the defendant, and sentence by way of fine or imprisonment was suspended until the further order of the court. And it was held by the Court of Errors and Appeals that a party could not be adjudged to pay costs and counsel fee and then await further punishment to be imposed at a future period. Counsel fee could not be imposed at all in a contempt case in the then existing state of statutory enactment; whether it can now, I do not pretend to say. But that case was not this case. Here there is no proposition to split up or divide the punishment of the criminal contempt feature at all. It is intended to impose but one sentence upon the defendant, and that one of imprisonment, so that he may be adequately punished for his heinous offense.
Order and warrant of attachment accordingly.