25 Ala. 81 | Ala. | 1854
The counsel for the relator insists, that the bill in this record does not make out a case of which the Chancery Court of Macon county can take jurisdiction; and thence concludes, that all orders made by the chancellor, in reference to it, are coram non judice, and void. If, on examination, such should be found to be the case, we should not hesitate to 'award the prohibition which is asked.
We have already held, that this court has the power, under the provisions of our State constitution, to prohibit the Chancery Court, where a proper case for the exercise of this power is presented. — Ex parte Morgan Smith, 23 Ala. 94. In that case it is held, that, where those courts act without jurisdiction, or where, having jurisdiction of the subject-matter and the parties, they exceed that jurisdiction, by making some order in the progress of the case which is directly and clearly repugnant to some law regulating the exercise of that jurisdiction, and the party injured can have no immediate redress by appeal, writ of error, or any of the ordinary modes pointed out by law, they should bo compelled to desist from the execution of such order, or promptly to vacate it, and to this end a writ of prohibition should issue to them.
It is not pretended, in this case, that the order appointing a receiver is repugnant to any law regulating the exercise of the chancellor's jurisdiction over the appointment of such officers ; on the contrary, it is admitted to be regular so far as mere practice is concerned. But it is contended, that the court making the order could not rightfully take jurisdiction between the parties on the case made by the bill, and is wholly incompetent to grant the relief sought; in other words, that the court has usurped jurisdiction which does not belong to it, and consequently is without authority to make any valid order in respect to the case.
To ascertain whether this is true, we must look to the case made by the bill, and to that alone, for its statements and allegations must be taken as true o.n. all questions of jurisdic
These things promised, we proceed to a general examination of the bill under consideration. It is filed by persons who represent themselves to be creditors, by judgment or specialty, of the estate of J. 0. Watson, deceased, in the State of Georgia, against a resident of the chancery district in this State in which it is exhibited, and other persons citizens of this State; it avers, that Walker, by false representation and fraud, has possessed himself of the funds of the estate to the amount of $25,000, and that he has already misapplied a portion of this sum, and 1ms threatened to misapply and waste the remainder, by converting it to his own use, or that of his family ; that the moneys belong to the estate of Watson in Georgia, where he was domiciled at the time of his death, and where administration was granted on his estate ; that Walker is wholly irresponsible, and insolvent; and that, if
These are the substantial allegations of the bill, and, in our opinion, make out a clear case for the interposition of a court of equity, under its general power over trustees and trust estates, and its ability to lay hold of a trust fund, when it is alleged to be in danger of waste,.and to preseiwe and administer it according to the purposes of the trust. — 2 Story’s Bq. Jurisp. §§ 826-7-8. In doing this, a receiver is generally indespensable, and is always appointed when applied for.
The application for that officer was here made, and he was appointed by the chancellor. As the court had jurisdiction of the case made by the bill, both as it regards the subject-matter and the parties, we think the appointment of the receiver was clearly within the range of its legitimate powers ; and as such ap]Dointment was made without violating any rule of law, it must be allowed to stand, and the application for a writ of prohibition must be denied.
Writ of prohibition refused.
On a former day of this court, a motion was submitted, by the counsel for the petitioner, for the writ of prohibition, or other appropriate process, to be directed to the chancellor of the Middle Chancery Division, requiring him to vacate an order appointing a receiver in the cause of W. Dougherty et al. v. Walker, pending in the Chancery Court of Macon county ; which order requires said Walker to pay over the money, admitted by his answer to be in his hands, and which he received from the United States, as the personal representative of the estate of Gen. Watson, deceased.
The ground relied upon by the counsel of Mr. Walter, in support of their motion, was, that upon the face of the bill, the Chancery Court of Macon was without jurisdiction, and consequently had no power to make the order complained of. This court, in response to that motion, without intending to pass definitively upon the merits of the controversy, but confining itself to the allegations contained in the bill, held, that
An application is now made to re-hear the cause, and review the opinion then pronounced; and the court is asked, also, to consider as to the regularity of the order, as well as of the subsequent proceedings based upon it, by which the petitioner has been deprived of his liberty, and is now in prison for contempt, by reason of his failure to comply with the decree requiring him to pay the money to the receiver.
The counsel for the petitioner again presses upon our consideration the argument that the bill makes no case for relief, — that the former opinion was based upon a partial view of its allegations; and they insist, that, although they should be mistaken in this view, yet the chancellor has transcended his jurisdiction, in ordering an attachment against Walker for contempt, as shown by the record accompanying the proceedings.
Upon a careful review of the opinion, and re-examination of the allegations of the bill, we entertain no doubt of the correctness of our opinion denying the writ of prohibition ; and without saying more upon that subject, we will at once proceed to examine the objections taken to the regularity of the proceedings for the contempt.
1. It is urged, that the order appointing a receiver is irregular, because the answer of Walker substantially denies the main allegations of the bill. We are of opinion, however, that there is a grave question of law to be settled in this case, which must materially affect the rights of the parties ; that is, whether this fund is to be administered in Georgia, or in Alabama. The defendant insists, that he is the executor in both States, and has the right to administer the fund in either. It appears that the secretary of the treasury, in the opinion pronounced by him awarding the payment of the money to Walker, regarded Mm as the executor in Georgia, and the inventory attached to the bill of complaint, if it may be called such, shows that Walker has reported this demand against the Government to the Court of Ordinary in Georgia, as assets of his testator’s estate, subject to administration there. Now it would be improper for us, perhaps, to anticipate this question by a decision of it upon the bill and answer
2. But it is insisted, that the order committing Walker for contempt is void — 1st, because it was an excess of jurisdiction, there being no law, or rule of practice, authorizing it; 2d, because it was not made upon notice to Walker; 3d, because it specifies or fixes no limit to the imprisonment; 4th, because, after paying the money, and thus complying with the order for disobedience to which he has been committed, he is required to enter into bond, with good security, to be approved by the register, &c., payable to said register, in the penal sum of one thousand dollars, conditioned to appear at the next term of the court and answer for the contempt; and, 5th, because Walker should have been allowed to give security that the funds should be forthcoming, and thus have been saved from the prison in the event he had disposed of the money. Let us briefly notice these objections in their order.
By the Code (§ 561), it is declared, that “ the power of the several courts of this State to issue attachments, and inflict summary punishment for contempts, does not extend to any other causes than,” <&c. Here follow the causes, consecutively numbered, the third reading as follows: “ The misbehaviour of any officer of the court, in their official transactions, or the disobedience or resistance of any officer of the
Again; section 3008 declares, that “ courts of chancery may also enforce their decrees, orders, and rules, by process of attachment against the party, or officer, in contempt, or by process of sequestration against his property.” The next section (3009) provides, that when the chancellor decrees that an act shall be done, he shall prescribe the time within which it shall be done. Section 3010 provides for the issue of an attachment by the register, upon the affidavit of the party entitled to have the act done, stating that the decree of the court has not been performed, under which the defaulting party may be arrested, and committed to prison until he performs such act, or until he is discharged by a special order of the chancellor extending the time for the performance ; and if, after such extended time elapse, the act is still unperformed, another attachment is to issue, upon affidavit. If the attachment cannot be executed, by reason of the officer not being able to find the delinquent, then section 3011 provides for the issue of a writ of sequestration.
These several sections of the Code give to the chancellor ample power to enforce his decrees by the process here resorted to, without which the Chancery Court would be impotent and powerless to afford relief as against a refractory suitor.
Nothing is said as to serving the party with a writ of execution of the decree before he can be put in contempt, nor of any notice to him that an attachment will be moved for. With respect to each, as applicable to the facts of this case, we do not hesitate to say, they were unnecessary. Walker was in court, and had personal notice of the order requiring him to pay the money in his hands to the receiver. He asked for no further time within which to pay the money, nor for leave to give security for its forthcoming at any future period. He submits to the order, and then, as the affidavits show, leaves the village with a view of evading it. Such being the
In Rider v. Kidder, 12 Ves. jr. 202, Lord Chancellor Ers-kine said : “The reason of requiring personal service is, non constat, that there is a contempt; that the party knows he has neglected to do anything he was called upon to perform. But in this instance,” he added, “ a decree made when the defendant was present in court, she knows she has not done what she was directed to do, and must therefore be conscious that she is in contempt.”
So, also, in De Manneville v. De Manneville, 12 Ves. jr. 203, personal service was dispensed with, it appearing plainly that the defendant had notice from his presence in court when the order was made. These were instances of short orders, as they were termed, fixing a period when the decree was to be enforced. The modern practice in England is, to dispense with short orders, and serve the defendant with a copy of the decree, which is required to fix the time of the performance ; the party adding a memorandum, that on failure to comply, by the time limited, the defendant will be liable to be arrested, and have his estate sequestered. This, however, is by an order made in August, 1841.' — 2 Dank Ch. Pr. 1250.
Without now deciding what would be the proper practice, as to notice of decrees made in defendant’s absence, as a preliminary step to putting him in contempt, we feel no hesitation in saying, that no further notice in casesN of the kind before us, under the provisions of our Code, is required. Where the party, being present in court, is ordered to pay over to an officer of the court, the receiver appointed under its order, a specified sum, admitted to be in his hands, he is in contempt when he attempts to depart the court for the purpose of evading the order. If further notice was required, in the language of Lord Chancellor Erskine, “ the defendant might, when called upon to pay the money, keep out of the way, and so prevent the effect of a decree or order made when he was present in court.” — 12 Yes. jr. 202.
The counsel is mistaken in supposing that the order of
As to the requirement of a bond to appear and answer for a contempt, we think the chancellor did not exceed his jurisdiction, but exercised it regularly. ' If a party sets at defiance an order or decree of the court, in contempt of its authority, a just regard on the part of the judge for the majesty of the law, as well as for the dignity of his station as a minister of justice, requires that he should promptly vindicate its supremacy, by punishing the offender. The payment of the money merely, while it terminates the contempt arising out of its non-payment, does not efface the contempt of the previous refusal. For this, the chancellor has full power to punish. It is indispensable, in the administration of justice, that men should be made to respect the laws of the land and the judgments and decrees of its accredited officers, and should not be allowed with impunity to array themselves in opposition to their authority when properly exercised.
As to the position that Walker should have been allowed to enter into bond, &c : We think this was a matter addressed to the discretion of the chancellor. He was certainly not bound, as a matter of law, to allow a bond to be given, before he could order an arrest for contempt. If this were so, lie might obtain bonds ad infinitum, without obtaining the money; for, if Walker may give bond, as a matter of right, for failing to comply with the decree requiring him to pay this money, he may give another when proceeded against upon the bond, and so on without end. Such is not the law. He answers that he has the money ; if he has, he can readily hand it over to the receiver. In doing this, no right which he possesses will be affected without compensation. If, however, he has parted with the money since the order was made, this would furnish additional reason for his arrest, since it would amount
IJpon the whole case, we feel well assured that the action of the chancellor is warranted by law and by the practice of the court, and we therefore refuse to award any process to annul or modify it. We have purposely avoided a decision upon the merits of this controversy, because such an opinion would be prematurely made on this preliminary motion, and' is not called for as necessary in the decision of it.
Motion denied, with costs.
