Kelly v. Montebello Park Co.

Thomas, J., delivered the opinion of the Court. This appeal is from an order of the Circuit Court, of Baltimore City passed in contempt proceedings. On the 11th of November, 1921, the Montebello Park Company, a body corporate, Erank M. Goetz and Annie M. Goetz, his wife, filed a bill of complaint in the Oireuit Oourt of Baltimore City against John 'II. Kelly and Marie Kelly, his wife, to enjoin them from erecting or proceeding with the erection of a garage on their lot in Baltimore City within seventy-five feet from the front street line of said lot, and on the same day a preliminary injunction was granted and issued enjoining the defendants, their “agents-, servants and employees” as prayed in the bill.

The endorsements on the writ of injunction returned by the sheriff, set out in the record, contain the affidavits of Oarl Martin Distler and Frederick H. Hennighausen that a copy of the writ was served by them on John H. Kelly and Marie Kelly, his- wife, on the same day it was issued, and the return of the sheriff stating that the injunction was again served on Kelly and his wife on the 14th of November, 1921. On the latter date the court below passed an order requiring Kelly and his wife and Harry Oolliso-n to- appear in said court on the 18th of November, 1921, and show cause why they should not he punished for contempt of court for disobeying: the injunction issued on the 11th of November, 1921, and on the 15th of November Kelly and his wife filed their “answer” setting up the following defenses: ¹⁹⁶ “1. That the paper alleging to be a writ of injunction was served on them on November 11th, 1921, a legal holiday. “2. That the said writ of injunction was not served .by a sheriff or deputy sheriff of Baltimore Oity. “3.

That the said writ of injunction was not served upon the independent contractor who was engaged in erecting the garage mentioned therein. “4. That the said John H. Kelly and wife had no control over the said contractor, and could not carry ' out the orders of this court.” After a hearing oar the 18th of November, 1921, at which Kelly and his wife and Harry Gollison wer’e present and testimoaiy was produced to show the violation of the injuno tioai, aaad also by the defendants, the court below passed an oi’der iar which, after stating that the evidence showed that Kelly aaid his wife aaid Gollison. had wilfully violated the injunction, it imposed a fine of $200 on Kelly and his wife, arid a fine of $100 on Gollison, and committed them to the custody of “the warden of the jail of Baltimore City” until the fines were paid. The defendants promptly paid the fines imposed, and then entered this appeal from the order. The first and important question to be determined is whether an appeal lies from such an order.

The comman law rule was that a court of competent jurisdiction is the sole judge of contempts against its authority and dignity, and its judgment in such cases is final and conclusive, and not reviewable bjr any other tribunal, either on a writ of error or appeal, unless specially authorized by statute. Rapalje on Contempts, sec. 141; 7 Am. & Eng. Ency. of Law,, 33-34; 9 Cyc. 61-62; 13 C. J., pp, 97-98, par. 155; 6 R. C. L., p. 538-540, see. 51; R. C. L., Supp. 2, p. 151, sec. 51. It is said in 13 O. J. 97: “The common-law rule has been changed, however*, in many jurisdictions by constitutional or statutory provisions authorfiziarg a review.

Accordingly, in jurisdictions where, by statutory or constitutional provisions, ¹⁹⁷ review of contempt orders may be had, authority is not wanting in support of the right of review in cases of civil or constructive contempt, especially in remedial proceedings for contempt where the punishment inflicted is in the nature of an indemnity to the party injured.” It is said in 7 Am. & Eng. Encyc. of Law, pp. 28-29; “Contempts of courts are further classified as criminal and civil. The division between the two is not uniformly defined in all jurisdictions.” This is illustrated by tbo several definitions, of civil and criminal contempts contained in tlie text and in the note on page 29. See also Rapalje on Contempts, sec. 21; 9 Cyc. p. 6; 6 R. C. L. 490; and 13 C. J. 6.

In the ease of Bessette v. W. B. Conkey Co., 194 U. S. 324 , the Supreme Court cpiotos the following statement of Jcbgb Saxbobjv in in re Nevitt, 54 C. C. A. 622 : “Proceedings for contempts are of two classes, those prosecuted to preserve the power and vindicate the dignity of the courts and to punish the disobedeience of their orders, and those instituted to preserve and enforce the rights of private parties to suits, and to compel obedience to orders and decrees made to enforce the rights and administer the remedies to which the court lias found them to be entitled. The former are criminal and punitive in their nature, and the government, the courts and the people are interested in their prosecution. The latter are civil, remedial and coercive in their nature, and the parties chiefly in interest in their conduct and prosecution are the individuals whose private rights and remedies they were instituted 1o protect and enforce. Thompson v. Railroad Co., 48 N. J. Eq. 105, 108, 21 Atl.

Rep. 182 ; Hendryx v. Fitzpatrick (C. C.), 19 Fed. Rep. 810; Ex parte Culliford, 8 Barn. & C. 220 ; Rex v. Edwards, 9 Barn. & C. 652; People v. Court of Oyer and Terminer, 101 N. Y. 245, 247 , 4 N. E. Rep. 259, 54 Am. Rep. 691 ; Phillips v. Welch, 11 Nevada, 187, 190; State v. Knight, 3 S. Dak. 509, 513, 54 N. W. Rep. 412 , 44 Am. St. Rep. 809 ; People v. McKane, 78 Hun. 154, 160 , 28 N. Y. Supp. 981 ; 4 Bl. Comm. 285 ; 7 Am. & Eng.

Ency. Law, 68. ¹⁹⁸ A criminal contempt involves no element of personal injury. It is directed' against the power and dignity of the court, and private parties have little if any interest in the proceeding’s for it-s punishment. But if the contempt consists in the refusal of a party or a person to do> an act which the court has ordered him to do for the benefit or the advantage of a. party to a suit or action pending before it, and he is committed until he complies with the order, the commitment is in the nature of an execution to enforce the judgment, of the court, and the party in whose favor that judgment was rendered is the real party in interest in the proceedings.” In Bessette's Case, Bessette was not a party to the suit in which the injunction was granted, but, with knowledge of the restraining order, he violated the injunction and was fined $250 by the circuit court for contempt.

Efom the judgment, and order imposing the fine he prayed an appeal to the circuit, court of appeals, and the question to he determined by the Supreme Court was whether the circuit, court of appeals could review an order of a district or circuit court in contempt proceedings. After quoting the above statement of Judge Saebokn, Mb.. Justice Bbewbb said: “Doubtless the distinction referred to in this quotation is the cause of the difference in the rulings of various state courts as to the right of review.” The Supreme Court held that,'as Bessette was not. a party to the suit, his case came more fully within the punitive than in the remedial class, and that as the Act of March 3, 1891, establishing circuit courts of appeals, gave those courts jurisdiction to review decisions of the district courts and the existing circuit courts in criminal cases, the circuit court of appeals had jurisdiction to review the judgment against Bessette, and in stating its conclusion said: “Considering only such eases of contempt as the present — that is, cases in which the proceedings are against one not a party to the suit, and cannot be regarded as interlocutory — we are of opinion that there is a right of review in the circuit court of appeals. Such a review must, according to the settled law of this, court, be by ¹⁹⁹ writ of error.

On such a writ only matters of law aro considered. The decision of the trial tribuna], court or jury, deciding the facts, is conclusive as to them.” In the case of Matter of Christensen Engineering Co., 194 U. S. 458 , the defendant in a suit for injunction, &c., was adjudged guilty of contempt for disobeying a preliminary injunction and ordered to pay a fine of $1,000, one-half to the Enited States and the other half to the complainant. On a petition for a mandamus commanding' the circuit court of appeals to take jurisdiction of a writ of error by which the petitioner sought to have the action of the circuit court adjudging him guilty of contempt, reviewed, the Supreme Court held, quoting from the syllabus, “Where an order imposing a fine for a violation of an injunction is substantially one to reimburse the party injured by the disobedience, although called one in a contempt proceeding, it is to be regarded as merely an interlocutory order, and to be reviewed only on an appeal from the final decree. Where, however, the fine is payable to the Enited States and is clearly punitive, and in vindication of the authority of the court, it dominates the proceeding and is reviewahle by the circuit court of appeals on writ of error, Bessette, v. W. B. Conkey Co., 194 U. S. 324 , and the court should take jurisdiction.” The distinction between civil and criminal contempts was again considered in Gompers v. Bucks Stove and Range Co., 221 U. S. 418 , where Samuel Gompers and others were adjudged guilty of contempt for violating an injunction, and ordered to be confined in the Enited States jail of the District of Columbia for a certain term.

Tin. <Tfstice Lamar there said: “'It is not the fact of punishment hut rather its character and purpose that often serve to distinguish between the two classes of eases. If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court. It is true that punishment by imprisonment may be remedial, as well as punitive, and many civil contempt pro ²⁰⁰ eeedings have resulted not only in the imposition of a fine, payable to the complainant, hut also in committing the defendant to prison.

But imprisonment for civil contempt- is ordered where the defendant has refused to do an affirmative act required by the provisions of an order which, either in form or substance, was mandatory in its character. Imprisonment in such cases is inflicted not as punishment, but is’ intended to be remedial by coercing the defendant to do' what he had refused to do. The decree in such cases is that the defendant stand committed unless and until he perforins the affirmative act required by the court’s order. “For example: If a defendant should refuse to pay alimony, or to surrender property ordered to be turned to a receiver, or to make a conveyance required by a decree for specific performance, he could be committed until he complied with the order. * * * The order for imprisonment in this class of cases, therefore, is not to vindicate the authority of the law, but is remedial and is intended to coerce the defendant to do the thing required by the order for the benefit of the complainant. If imprisoned, as aptly said in In re Nevitt, 117 Fed. Rep. 451, ‘he carried the keys of his prison in his own pocket.’ lie can end the sentence and discharge himself at any moment by doing what he had previously refused to do. “On the other hand, if the defendant does that which he has been commanded not to do, the disobedience is a thing accomplished.

Imprisonment cannot undo or remedy what has been done nor afford any compensation for the pecuniary injury caused by the disobedience. Tf the sentence is limited to imprisonment for a definite period, the defendant is furnished no key, and he cannot shorten his term by promising not to repeat the offense. Such imprisonment operates, not as a remedy coercive in its nature, hut solely as