249 F. 958 | 2d Cir. | 1918
(after stating the facts as above).
The defendant’s first point is that the order to show cause could be the basis only of a criminal contempt, and that therefore, under Gompers v. Bucks Stove Co., 221 U. S. 418, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874, it was irregular, because it did not state with sufficient distinctness what the contempt was, and because it was not served personally. We do not think that the contumacious acts relied upon weye insufficiently set forth, even for a criminal proceeding. The order to show cause was no more than process and prayer, and in the absence of any statutory regulation might be read along with the supporting affidavit. Assuming that, if the proceeding was criminal, personal service was necessary, such is not the casé when it is to punish for a civil contempt. Pitt v. Davison, 37 N. Y. 236. Now, this was in no case properly a criminal contempt, being brought in the suit, and by the plaintiff, and not in the name of the United States. Gompers v. Bucks Stove Co., supra. But it is urged that these were but formal irregularities, and that the purpose of the proceeding was clearly criminal. This is not true, in spite of the use of the inappropriate word, “punished.” It was open to the plaintiff under that language at least to recover a remedial fine, enforceable by execution, and such relief would be aptly enough described as a punishment. The opinion in Gompers v. Bucks Stove Co., supra, did not hold, as the defendant urges, that the proceeding there was criminal. On the contrary, it held that, not being such, no punitive order could properly be based upon it. None such could have followed this order to show cause, for the reasons there given. If the defendant had understood the law, it could never have been supposed that the proceeding could be criminal, whatever the prayer for relief might be, for it was either a civil proceeding or it was a nullity.
Order affirmed, with costs.