176 Ky. 252 | Ky. Ct. App. | 1917
.Opinion op the 'Court by
Reversing. '
In May, 1916, B. J. Elam was appointed receiver of the Salyersville Gas Company, in the action of the Continental Supply Company v. The Salyersville Gas Company, then pending in the Magoffin circuit court.
At the October, 1916, term of that court, Judge D. W. Gardner, the presiding judge, entered an order upon the motion of the Continental Supply Company, directing Elam as receiver to make a full and complete report and settlement before the master commissioner. The master filed his report on November 17, 1916, and both the Continental Supply Company and Elam filed exceptions thereto.
On November 27, 1916, the court entered this order: “It is ordered by the court that B. J. Elam, after inspection of settlements be, and he is discharged as receiver of the Salyersville Gas Company.”
On the same day John Salyer was appointed receiver for the Salyersville Gas Company, and he qualified as such, as required by law.
There is nothing to show that Elam had any notice of the action of the court discharging him as receiver, and we understand it is not contended that he did have notice thereof. This is borne out by the fact that on the same day the court entered another order which recited that Elam had tendered his resignation as receiver, at a former day of that term of the court, and that the court accepted the same and appointed Salyer as receiver in Elam’s stead; and, the order further directed Elam to
Presumably, this last order was entered upon the theory that the previous order of the same day discharging Elam, without notice and an opportunity to be heard, as well as the appointment of Salyer, was premature and erroneous. There is nothing in the record to .show that Elam had any notice of the order last above referred -to; but, as it recites that the court acted upon Elam’s resignation, it was entered evidently upon the theory that no notice to Elam was necessary.
On December 1st, Salyer filed his affidavit showing that he, as receiver, had demanded of Elam the property of the Salyersville Gas Company, and that Elam had refused to surrender it. At the same time Elam appeared in court, and, having announced that he had not tendered his resignation-, the attorney for the plaintiff asked his removal; whereupon, the court gave Elam time until two o’clock of that day to show that he had not presented his resignation, and why he should not be removed. as receiver.
Elam filed a demurrer to the rule against him, and the demurrer was overruled on the same day.
Thereupon, Elam made a motion to set aside and vacate the order appointing Salyer as receiver and directing Elam to deliver to Salyer the property belonging to the Salyersville Gas Company, upon the ground that he had never resigned his office as receiver; and, there being no vacancy in-the office of receiver, the court was without jurisdiction to appoint Salyer. At the same time Elam as receiver filed a demurrer to the order appointing Sal-yer as receiver and directing Elam to turn oyer to Sal-yer the property of the Salyersville Gas Company,- and, the court overruled the demurrer.
Elam, by his attorney, A. H. Adams, the appellant, then filed his affidavit seeking to depose Judge Gardner as circuit judge under section 968 of the Kentucky Statutes. The affidavit stated three grounds why Judge Gardner should not sit in the ease, and why Elam believed he could not secure a fair and impartial hearing on his motion to set aside and vacate the orders above referred to, and on the trial of his exceptions to the commissioner’s report, as follows: (1)' That Judge Gardner .was personally interested in the result of the trial of
The affidavit further stated that these election contests were active and heated; but the only charge made in this connection is that during these elections Judge Gardner made'such promises and alliances with the people interested in the result of this motion and trial, that he could not and would not decide this ease or motion “in favor of Elam.”
Judge Gardner held the affidavit insufficient, and entered an order which, in part, reads as follows:
“The court upon inspection of the above affidavit adjudges that B. J. Elam, who filed the above affidavit, and A. H. Adams, attorney, who presented same, are each in contempt of court, and being present each is hereby declared so; and, the court refuses to hear any further motion from B’. J. Elam and hereby removes him as receiver of the Salyersville Gas Company.”
On the same day the court entered this further separate order relating to Adams:
“The defendant, A. H. Adams, who was adjudged in contempt of court by the above order, will not be permitted to file any pleadings or make any motions in this court until he purges himself of said, contempt; to which
All of the foregoing orders, beginning with the order filing Salyer’s affidavit showing that Elam had not complied by surrendering the property, were entered on December 2, 1916, Adams appearing and acting as attorney for Elam. Two days later — on December 4, 1916 —Judge Gardner filed a statement reciting briefly the foregoing steps in the case relating to the removal of Elam as receiver, and closed it with the following declaration :
“Now comes B. J. Elam and A. TI. Adams and files the affidavit of B. J. Elam seeking to depose the court from this case; upon consideration of this affidavit the court considered it insulting, and reflecting upon the court, and being filed at a time when the court (had given) his opinion and had taken jurisdiction of the ease; and both Elam and Adams appearing to the court to be in an intoxicated condition, the court then adjudged a contempt against both Elam and Adams.”
At the same time the affidavit of Salyer was filed, in which he contradicted the statement made by Elam, to the effect that Judge Gardner had promised to appoint Salyer receiver of the Salyersville Gas Company for the purpose of securing votes .and support in his election. It is not improper, under the circumstances, to say that Adams denies he was intoxicated.
Adams prosecutes this appeal from the order suspending him from practice, and asks a reversal upon two principal grounds: (1) that the Elam affidavit was not improper, and appellant’s act in filing it did not justify the court either in adjudging him to be in contempt or in suspending him from the practice of law; and, (2) that the contempt judgment was, under any view of the case, erroneous because it failed to define the terms upon which the appellant could purge himself of contempt!
Section 950 of the Kentucky Statutes regulating appeals to this court provides that no appeal shall be taken to reverse a judgment punishing contempt. But, in this respect, the cases make a distinction between criminal and civil contempts.
Civil contempts are those quasi contempts which consist in failing to do. something which the contravenor is ordered by the court to do for the benefit or advantage of another party to the proceeding before the court; while criminal contempts are all acts in disrespect of the court or its process, which obstruct the administration of justice, or tend to bring the court into disrespect. Wages v. Commonwealth, 13 Ky. L. R. 925; French v. Commonwealth, 30 Ky. L. R. 98, 97 S. W. 427; 6 R. C. L., p. 490.
Notwithstanding the statute, supra, an appeal lies in cases of civil contempt. City of Newport v. Newport Light Co., 92 Ky. 445; Rebhan v. Fuhrman, 139 Ky. 421. And, while this court is prohibited by the statute from retrying the question of contempt or no contempt of a criminal nature, it may, nevertheless, revise and correct illegal sentences, or excessive or cruel punishments. Beckley v. Commonwealth, 2 J. J. M. 574; Turner v. Commonwealth, 2 Met. 619; French v. Commonwealth, supra; Brown v. Brown, 96 Ky. 505; Edge v. Commonwealth, 139 Ky. 252. This being a case of criminal contempt, we have the power to revise the judgment complained of to the extent indicated.
It may be said generally that, in the trial of a case, no step that is permitted by law can be treated as contempt of court; otherwise, the remedy given is denied. Section 968 of the Kentucky Statutes expressly provides that if either party shall file his affidavit that the presiding judge will not afford him a fair and impartial trial, the judge shall vacate the bench. But to have the regular judge vacate the bench, the litigant must state the facts upon which he rests his belief-that the judge will not give him a fair trial; and, the facts thus shown must be pertinent to the case, and such as should prevent the judge from presiding. German Ins. Co. v.
Under this rule the Elam affidavit was insufficient because it was not timely made. While the facts relied upon as a basis of the affidavit were pertinent and not improperly introduced, they occurred long before the proceeding to remove Elam Was taken, and were well known to him a.t the time he filed Ms exceptions to the commissioner’s report. The filing’ of the affidavit was, however, permissible under, the statute; and, the fact that it was not timely filed did not make it a contempt of court.
Under either view of the case, the judgment finding 'the appellant guilty of contempt and suspending him from the practice of his profession was erroneous and illegal and will have to be reversed.
It is so ordered.
