187 Mass. 509 | Mass. | 1905
This is a petition for a writ of mandamus to compel the justices of the Superior Court to proceed with the hearing of a suit in equity, upon exceptions to a master’s report, and thereafter upon the merits. We treat the reservation as a report of the questions of law which arise upon the record and the agreement of the parties, under the R. L. c. 156, § 7. We do not think that the slight change in this section from the language of the Pub. Sts. c. 150, § 8, was intended to change the meaning of the provision, and it has always been held that a justice of the Supreme Judicial Court, sitting at the trial of an action at law, might report questions of law to the full court, without deciding them.
The petitioner, who is the plaintiff in that suit, is in contempt of the court for a violation of an injunction. The principal question is whether a plaintiff who is in contempt has an absolute right to proceed in the trial, such that it is the legal duty of the court, upon his request, to permit him to go on.
The authorities agree upon the familiar doctrine that a party in contempt is not in a position to ask the court for any favor or indulgence. 1 Dan. Ch. Pl. & Pr. (5th Am. ed.) 504, 505 and notes. Hovey v. Elliott, 167 U. S. 409, and cases cited. In re Wickham, 35 Ch. D. 272. Clark v. Dew, 1 Russ. & M. 103. Ricketts v. Mornington, 7 Sim. 200. Rogers v. Paterson, 4 Paige, 450. In Honey v. Elliott, ubi supra, many cases were reviewed,
If a plaintiff prays for a decree against his adversary we are of opinion that the principles stated in the cases first cited should be applied to a request to proceed with the case to a final judgment, as well as to requests for preliminary favors. It is plain that misconduct of a plaintiff that is treated as a contempt often may be of such a kind as would make it impossible to goon with the case without great injustice to the defendant. Suppose, for illustration, that a plaintiff disobeys an order to produce books and papers which the defendant is entitled to have in evidence, or refuses to answer interrogatories, or questions put to him as a witness on the stand. It would be absurd to say that, while in contempt for disobedience of an order of this kind, a plaintiff would have a right to have the trial proceed.
The statement of the law in Brinkley v. Brinkley, 47 N. Y. 40, 49, is, that “ a party in contempt . . . will not be permitted to ask for the favor of the court, nor to take any aggressive pro
It is contended that the last decree, ordering the plaintiff to pay the sum of $1,000 to the defendants, was erroneous. This part of the decree was intended to give the defendants compensation for their damages, caused by the plaintiff’s violation of the injunction. It has been said that, in the absence of statutory authority, the court cannot assess a party’s damages for a breach of an injunction, in a proceeding of this kind, and order them paid by the party in contempt. Swift v. State, 63 Ind. 81. Morris v. Whitehead, 65 N. C. 637. In re Pierce, 44 Wis. 411. State v. Lonsdale, 48 Wis. 348. Eads v. Brazelton, 22 Ark. 499.
We do not find it necessary to determine whether this part of the order is regular; for, if it is not, there is a valid adjudication that the plaintiff is in contempt. The decree referred to is in such a form that the first part of it is complete in itself, as an adjudication that the plaintiff is in contempt, and is separable from the last part, ordering the payment of damages.
We have considered the case on the merits, without passing on the question whether the petitioner has exhausted his rights in other forms of proceeding, so as to be entitled to make an application for this extraordinary remedy.
Petition dismissed.