Dorrian v. DavisDorrian v. Davis
The petition is verified by Philip S. Godfrey, a law clerk in the office of Repetto Godfrey, solicitors of petitioner, who swears he is a duly authorized agent of the petitioner, Williams Davis, Incorporated, and knows of his own knowledge that the matters said to be facts аre true and correct; that he has read the petition to punish the alleged contemnors, and says that he verily believes all the matters and things contained therein to be true; that a writ of attachment has been sent to the sheriff of Atlantic, who is prevented from attaching the moneys and securities referred to, to the injury of the petitioner; that there was deposited with (and/or assigned to) said receiver numerous securities and several cash items of an amount unknown to him but less in value than the amount to be recovered in the attachment as endorsed on the writ, $189,905.65; that he is informed and verily believes that the decree appealed from is not yet operative, and that the orders appointing receiver are still in force and effect; that he has been informed and verily believes that the receiver has delivered tо Williams Davis, or their solicitors of record herein, the most part or all of the said securities and money, notwithstanding the injunction contained in the orders appointing receiver requiring him to keep and preserve the same, and that such delivery, contrary to said orders, was madе on Friday, May 31st, 1929.
A form of order to show cause was presented with the above petition, which requires that Emerson L. Richards, A. Trevor Williams and Royden B. Davis show cause before the chancellor (on a day to be named) why they should not be adjudged guilty of contempt in the premises and рunished
The first question that arises is, Is this a criminal or a civil contempt; for the procedure in the respective cases differs widely. In this case I deem the contempt charged tо be a criminal one.
Now, in Staley v. South Jersey Realty Co., 83 N.J. Eq. 300, it is laid down by the court of errors and appeals that contempts are of two sorts, civil and criminal. In a civil contempt the proceeding is a remedial step in the cause inter partes. Criminal contempts are offenses against organized society and рunishable as such in a proceeding at law, and while it may be administered by the court in which the contumacious conduct occurred, it is not a part of the prior litigation therein; that the proceeding instituted in the court of chancery for the purpose of having that court adjudge whether or not a defendant in the cause pending therein was guilty of a contumacious violation of an injunction issued by it, is a proceeding at law in a criminal contempt in which the defendant is entitled to all of the substantial rights of a person accused of crime that are consistent with the summary nature of the process of the tribunal in which it is administered, one of which rights is that the incriminating testimony shall be given by witnesses subject to cross-examination and impeachment under the ordinary rules of evidence. In the cause just mentioned it was said (at p. 304): “The distinction betweеn refusing to do an act commanded [remedied by imprisonment until the party performs the act], and the doing of an act forbidden [punished by imprisonment for a
Of course an order to show cause in the first instance may be made, but upon its return a trial shаll be had by witnesses in open court, unless the respondent waives that requirement, either expressly or by implication. In re Hayden, 101 N.J. Eq. 361.
An injunction is defined to be a prohibitory writ to restrain one or more parties from doing, or permitting others under their control to do, an act deemed inequitable. 2 Bouv. Dict. (Rawle‘s 3d rev.) p. 1569. Whеther an order is a restraining order or a temporary injunction must be determined from its form and substance. The restraints which the order purports to impose, and not the name given to it, determines its true name and character. 32 C.J. 28. The order in this case said to have been contemnеd is in reality an injunction. It says inter alia that “the said receiver shall hold the said bonds, mortgages, securities and money until the final determination of this case and the further order of this court in the premises.” It will be observed that the receiver is directed that he hold the securities until the final determination оf the case and until further order; the act forbidden is, disposing of the securities until further order. The petitioner refers to the restraint as an “injunction.” The order is what is called in practice an “injunctive order.”
In Brown v. Brown, 96 N.J. Eq. 428, this court held (at p. 430), that the contempt was a criminal one, “and the law in such сase is that the contempt is not a step in the prior litigation in which it occurs * * * it should be an independent proceeding.”
In Passaic-Athenia Bus Co. v. Consolidated Bus Co., 100 N.J. Eq. 188, this court held that the proceeding to punish for criminal contempt must be brought in a separate cause and not as a mere proceeding in a suit fоr relief. And, further (at p. 192), and “infirmity that cannot be overlooked and one which must be considered fatal to the complainant on this proceeding is the failure to make it a separate cause instead of a mere proceeding in the suit for relief.”
A proper title is: “In Chanсery of New Jersey. In the matter of (naming the respondents) charged with contempt of court.” And that is the usual and correct title.
Another thing: The petition avers certain facts on information and belief, without charging that they are true. This is defective pleading. In Riehl v. Riehl, 101 N.J. Eq. 15, this court held that allegаtions on information in a pleading should also state that the party believes them, and to be efficacious, must further charge them to be true; this is the rule in this court.
Still further, the affidavit of Mr. Godfrey is that he has “been informed and verily believes that Emerson L. Richards has delivered to A. Trevor Williams and Rоyden B. Davis (and/or their solicitors of record herein) the most part or all of the said securities and money, notwithstanding the injunction,” c. Now, there is a rule of law that when it is permissible to make an affidavit on information and belief, the source of information and the grounds of belief must be stated. 2 C.J. 356.
In Penn Oil and Supply Co. v. Cohn, 116 N.Y. Supp. 124, it was said, at bottom of p. 126: “When courts and judicial officers are asked to act upon affidavits founded on information and belief, they must be furnished with the sources of the information in order that they may draw their own conclusions,” citing cases. In the case at bar it must be apparent that the affiant at least knows the sources where, or the persons from whom, he received the information, and they should be the affiants, or the reason why they are not should be stated. It may be observed that chancery rule 257, subdiv. 4, provides that in suits for divorce the affidavit of description of defendant shall sрecify of what person inquiry was made, and if the inquiry has elicited information, c., it shall be accompanied by an affidavit of the person furnishing such information, disclosing affiant‘s knowledge, if such can be obtained. Here is a formal recognition that the rule of best evidence obtains. Sеe Lasker v. Lasker, 91 N.J. Eq. 352.
It will be recalled that the order asked for commands the defendants to appear and testify prior to its return. And it must also be recalled that the alleged contempt being one of a criminal nature, therefore, the defendants are entitled to all of the protеction afforded defendants in like cases. That being so, if the order were made they could testify themselves on the hearing, if they chose, and might be cross-examined on the whole case; but they could never be compelled to give testimony against themselves. See State v. Zdanowicz, 69 N.J. Law 619.
The prayer of the petition must be denied for the following reasons: Because (1) the contempt alleged is not remedial, that is, is not a step in the litigation in which it occurs, but must be an independent proceeding, entitled “In Chancery of New Jersey, In the matter of (naming the respondents), charged with contempt of court;” because (2) the facts charged in the petition to be on information and belief must contain an averment that petitioner believes them and that it charges them to be true; because (3) an affidavit on information and belief must state the sources and grounds of
The prayer of the present petition must be denied. It will of course be without prejudice to the bringing of a proper action.
SUPPLEMENTAL.
After the making of the abоve deliverance counsel for the petitioner came before the court with a new petition and affidavits complying with the requirements above set out, and obtained a proper order to show cause. The matter came on for hearing before Vice-Chancellor Backes, and at the conclusion of the trial he acquitted the defendants and discharged the order to show cause.