51 Ill. App. 102 | Ill. App. Ct. | 1893
delivered the opinion of the Court.
In September, 1891, a creditor’s bill was filed by Aaron Feltenstein, complainant, against the plaintiff in error, and on the twenty-second day of that month an order was entered in said cause, appointing a receiver, and directing the plaintiff in error to assign and turn over to such receiver all his estate, etc., not exempt from execution, and requiring him to appear before the master and submit to an examination touching his business and property.
Upon the coming in of the master’s report, the exceptions thereto by the plaintiff in error were overruled, and the report confirmed, by order entered December 12,1891, wherein it was found by the court that the plaintiff in error had failed to truly discover his assets and property in possession and under his control, and had contumaciously refused to truly testify and discover the whereabouts of the same; that he had refused to honestly account for moneys received by him, and that he had, when said original order of September 22d was entered, and still had, in his possession and under his control, at least the sum of $7,500 in money, which it was his duty to pay over to the receiver, and that he refused so to do, all of which was in violation and disobedience of said original order.
And on the same day this order appealed from for a commitment to jail, in the name of the people, was entered, reciting, substantially, the same findings.
The order of commitment was for disobeying the original order of September 22d. Of that order the plaintiff in error most clearly had notice. In response to its requirements, he appeared before the master and testified, and by the order confirming the master’s report and overruling his exceptions, it appears that “also came Jacob Berkson, having due notice thereof, and being represented in court by his solicitors.”
His duty was fixed by that original order. That was an appealable order, under our statute, but the plaintiff in error never has sought by appeal to have it reversed or modified. On the contrary, he acquiesced in the order in so far as to submit himself to examination-before the master. He can not now, in this proceeding, question the propriety of the order or its findings of fact. That could be done only by appeal from that order.
The assigned error that the order did not extend so far as to authorize the master to report to the court the testimony of plaintiff in error, and the master’s conclusions thereon, can not be urged here for the first time. The order did by its terms require plaintiff to appear before the master and submit himself to an examination touching the matters in controversy. The objections filed before the master, and afterward filed as exceptions in the Circuit Court, fail entirely to raise that question. Those exceptions were wholly confined to controverting the correctness of the master’s findings of fact.
¡No objection was made that either the master or the court was proceeding improperly, and we will not now, for the first time, hear such objections.
It is next urged that the order of commitment is void on its face, because it does not recite that the plaintiff in error Avas present Avhen the order Avas entered, or had received personal notice that a rule had been entered, or would be applied for, requiring him to show cause why he should not be committed for a contempt of court.
As already stated, the plaintiff in error had notice of the order for the violation of which he was committed, and acted under it to some extent.
It appears on the face of the master’s report, that he must have known what its recommendations Avould be, and the reasons for them.
The contempt of which he was found to be guilty, was determined from his OAvn testimony before the master. He knew Avhat the order required him to do, and he knew better than any one else that he was disobeying those requirements. His testimony showed that he had shortly before received large sums of money, and that he gave no reasonable account of their disposition. He therefore kneAV that he Avas violating the order of the court in refusing to discover the Avhereabouts of such moneys, and to turn them over to the receiver.
The cited authorities as to the method of procedure where parties are alleged to be in contempt of court in cases at laiv, have no application to proceedings in equity.
Heither was the contempt adjudged against plaintiff in error a criminal contempt committed in the presence of the court, but was a civil, as distinguished from a criminal, contempt, in that the act consisted of a refusal to do something that was commanded to be done, instead of being an overt act of commission. In such a case it may be' questioned whether, when the judgment of commitment is entered, the personal presence in court of the contemnor is necessary. But whether that be so or not, we think the order of commitment sufficiently shows that the plaintiff in error was in court in person at the time it was entered.
The order recites: “ And also came Jacob Berkson, having due notice of said motion and application by his counsel.”
Tested by recognized rules of grammar and punctuation, that means that Jacob Berkson, the plaintiff in error, was present, having been duly notified by his counsel of the motion and application. What the fact may have been, we have no means, other than from the record, of knowing.
Counsel for the plaintiff in error, speaking outside of the record, say he was not present, but counsel for defendant in error answer with equal positiveness, that as a matter of fact he was present, and that counsel for plaintiff in error could not, of their own knowledge, speak concerning his actual presence or absence, for the reason they were" not then in any way connected with the case.
It was said in Petrie v. The People, 40 Ill. 334, and restated in O’Callaghan v. O’Callaghan, 69 Ill. 552, “ After a party has once been brought into court, ths presumption is that he is present, and cognizant of every step taken in the cause until it is terminated, unless there has been considerable time elapsed without taking any steps in the case and it- was held that notice was not necessary, that an attachment would be asked.
In this case, the plaintiff in error well knew that he had been ordered to disclose his property and turn it over to the receiver, and that he had not complied with the order, and he was bound to know the penalties of the law incurred by him for such disobedience.
So that if the recital in the order that he was present in pursuance of notice, admits of a construction, such as might be given to it, that he was present only by counsel, it would still seem to be enough. The court had undoubted jurisdiction to make the original order. Plaintiff in error submitted himself to the jurisdiction of the court, and had actual notice of every step in the cause up to the entering of the order of commitment, and if not then personally present, he was present by counsel, who asked for no opportunity for him to be heard to purge himself. We do not think, upon the showing made by the record, that the plaintiff in error can complain that he was insufficiently heard in defense of his contempt.
It is further insisted that the order of commitment is void because it finds the plaintiff in error guilty of several distinct offenses, and commits him to jail until he shall have complied with each one of the several requirements imposed upon him.
That there ' should be certainty in an order of commitment in a chancery cause, wherein the commitment is until the contemnor shall do some required act, may be conceded, but it does not necessarily follow that because there are several required acts to be performed, some of which are too general in terms to be susceptible of complete performance, that those acts which are specific, and, in the nature of things, capable of performance, should not be done. In the order complained of, the finding that the plaintiff in error had in his possession at least the sum of $7,500, which it was his duty to have turned over to the receiver in pursuance of the original order, was definite and certain. Had the plaintiff in error turned that sum over to the receiver, as was found to have been his duty, and applied to the court for a modification of the order in those other respects in which it is claimed it .was too general, there can be no doubt but the court would have so modified the order as to have made it comply with the requirements of justice.
The case of Tolman v. Jones, 114 Ill. 147, was an appeal from an order of commitment for refusal to obey a previous order in the same cause, directing an assignment to a receiver of certain property in controversy. The court said: “ If it be the true construction of the order that it required the assignment of other property than the property of the corporation, or property alleged as belonging to it, then the order, in that respect, would be too broad, and wrong. But it does not follow that appellant would be justified in disobeying the order for that reason.
“ That would depend upon whether or not the court had jurisdiction. The principle is of- universal force that the order or judgment of a court having jurisdiction, is to be obeyed, no matter how clearly it may be erroneous. * * * There was, here, jurisdiction over the parties. The court had power * * * to appoint a receiver, and to place the property of the corporation in the hands of the receiver. The order -x* * * was made in the exercise of that power, and if the order embraces property not shown by the bill to belong to the” corporation, “ this would seem to be but an error in the exercise of jurisdiction.” * * *
“ The order * * * at the most, was not wholly void, but only in the particular wherein it is complained of as being too broad. Appellant’s proper remedy would have been an application to the court to modify the order in that respect. There was no such application. There was no such objection made to the order. * * * There was no offer or willingness ever expressed to execute any requirement to the extent it is not objected to as being too broad.”
The remarks of the Supreme Court quoted, are applicable to this case. The plaintiff in error is not shown to have objected below to any part of the original order as being too broad. He never appealed from it, but on the contrary expressly acquiesced in it, and now seeks to avoid the results of his disobedience to every part of it, on the ground that it is in some respects too general, and is not susceptible of performance in all respects.
This he may not do. The original order required him to turn over to the receiver all his property not exempt from execution.
By a subsequent order the court found that he had in his possession at least the sum of $7,500 in money, which it was his duty to turn over to the receiver in pursuance of the original order, and that he refused so to do.
The fact that the original order may have been too general in its requirements relating to the delivery by Berkson to the receiver of his books of account, bills, notes, contracts, vouchers, documents, and any other evidences in writing, or documentary matter relating thereto, and to his business, is no justification of a disobedience in the particular that was certain and definite. Order affirmed.
I submit to the authority of the Supreme Court, and acknowledge our obligation to follow their decision in Tolman v. Jones, 114 Ill. 147. But for that decision I should believe that if a court directs, by an order from which no appeal will lie, a party to do what he ought not to be required to do, or makes the order in such vague or uncertain terms that the party can not tell what is required of him, then an order committing him for disobedience or non-performance, is erroneous, and being erroneous, and should be reversed in a direct proceeding to review it. In this case the order appointing a receiver, while appealable under the act of June 14, 1887, was an order of course, that could not be reversed. Edwards v. Rodgers, 41 Ill. App. 405.
But the residue of the order, as to what the then defendant was to do, was not appealable. It could not be reviewed. Lester v. Berkowitz, 125 Ill. 307.
And the court there say, obiter, that on review of a judgment for contempt “ the propriety of the preliminary or interlocutory order should be considered.”
Lester v. People (Ill.) 23 N. E. 387, where the Supreme Court did review the order which was before them in 125 Ill., is not final, as we are informed, being suspended by petition for rehearing pending or granted. On the Avhole I feel bound to concur in the opinion of Judge Shepard.