In re Rosenberg

90 Wis. 581 | Wis. | 1895

Lead Opinion

Newman, J.

On habeas corpus, only jurisdictional questions are inquired into. In re Milburn, 59 Wis. 24; State ex rel. Welch v. Sloan, 65 Wis. 647; In re Graham, 74 Wis. 450; In re Graham, 76 Wis. 366; In re Frederich, 149 U. S. 70. There is no question that the court had jurisdiction of the cause of action and of the parties. If, then, it had power to make the order of commitment in any supposable circumstances which might arise in the progress of the cause, then the order is valid until reversed, however erroneous it may be in the particular circumstance. Cases cited above; Tallman v. McCarty, 11 Wis. 401; People ex rel. Johnson v. Nevins, 1 Hill, 154.

The action was brought for the discovery of the goods of the debtor firm. The whole matter of enforcing the discovery was within the jurisdiction of the court. It was within its discretion to direct the manner in which the discovery should be made. It might require the petitioner to make discovery by the production of books and papers, by oral examination or by written statement, or by all these modes, as should appear to the court necessary and most feasible and conducive to the end in view. All this relates to practice, not to power; to form, rather than to substance. The substance of the proceeding was to obtain discovery. Error in mere form, if it exists, does not touch jurisdiction. To the end that the discovery should be complete and effectual, the court had power to require the petitioner to use all the means within his power for acquiring the information necessary to enable him to give the discovery called for. 1 Pomeroy, Eq. Jur. (2d ed.), § 204; 1 Daniell, Ch. Prac. (6th ed.), 124. And the court had no right to be deceived by untruthful statements, nor to be satisfied by evasive or prevaricating answers. Prevarication by a witness has the same effect upon the administration of justice as a refusal to answer. To the same effect it puts the witness in the position of standing out against the authority of the court, and thwarts the court in its effort and purpose of doing justice between the parties. It is contumacy. It is direct contempt of the authority of the court. Berkson v. People, 154 Ill. 81.

Provision is made for the examination of the defendant in an action for a discovery under sec. 3029, R. S., by sec. 3 of Circuit Court Eule XXVIII, relating to “ Creditors’ Actions, Supplementary Proceedings, and Eeceivers.” It is provided that the defendant may be required to appear before a judge or court commissioner, to produce his books and papers, and to submit to such examination on oath as he shall direct, in relation to any matter which he may be legally required to disclose. Provision is also made by sec. 4096 for' the examination of a party otherwise than as a witness at the trial. This section has been held to be a substitute for the bill of discovery under the former practice. Frawley v. Cosgrove, 83 Wis. 441. Under this statute a party is made a witness at the instance of the adversary party. The examination is subject to the same rules which apply to the examination of other witnesses. The scope is limited only to such matters as are relevant to the controversy. And answers may be enforced by contempt proceedings. Sec. 3477 provides that courts of records have power to punish any misconduct of persons summoned as witnesses, in refusing to be sworn or to answer questions as such witnesses. Sec. 2565 provides for punishing similar misconduct as for a criminal contempt.

These statutes and rules seem, evidently, to make the petitioner’s conduct in refusing to produce the books and papers of the firm, and to make truthful discovery under oath, without evasion or prevarication, a contempt of the court, and to provide for its punishment. But, if that were doubtful, the power to punish as for a contempt the refusal of a party to produce books and papers when so lawfully required, or to make discovery on oath of his property, without evasion or prevarication, is ample at the common law, without the aid of any statute. State ex rel. Lanning v. Lonsdale, 48 Wis. 348, 366; People ex rel. Hackley v. Kelly, 24 N. Y. 74; Holman v. Mayor, 34 Tex. 668; State v. Matthews, 37 N. H. 450; Ex parte Robinson, 19 Wall. 505; Interstate Commerce Commission v. Brimson, 154 U. S. 447, 489; 3 Am. & Eng. Ency. of Law, 780, and cases cited in note 4.

The substance of ivhat was required of the petitioner was that he make truthful discovery of the property of the firm, in some form. After he had failed to produce the books and papers of the 'firm, and after oral examination had failed to elicit the truth, the court gave him still further time, and an opportunity to make discovery by a written statement, to be verified by bis oatb. This, too, be failed to make. That tbe court was at all times ready to receive a truthful discovery, in whatever form, is evident from tbe whole course of tbe proceeding. But it was perseveringly thwarted by tbe evasion and prevarication of tbe petitioner.

Whether the petitioner’s answers -were untruthful, evasive, or prevaricating, so as in effect to amount to a refusal to answer and to give tbe discovery called for; or whether it was fairly within his ability to make the discovery required of him; whether his conduct was innocent or contumacious,— were questions which the exigency of the case required the circuit court to determine. The power to determine is jurisdiction. The correctness or justice of the determination of these questions by the circuit court is not open for. consideration here. That determination is conclusive in this proceeding. State ex rel. Welch v. Sloan, 65 Wis. 647; People ex rel. Tweed v. Liscomb, 60 N. Y. 571.

And whether the rulings of the court which were disobeyed are to be considered as oral directions simply, is immaterial. The petitioner was bound to obey the oral directions of the court touching the discovery, during its progress, made in open court, when he was present. A refusal to do so is a direct contempt of the authority of the court.

When any such misconduct as is a contempt is committed in the immediate view and presence of the court, it may be punished summarily by fine or by imprisonment, or by both fine and imprisonment. For that purpose an order must be made by the court, stating the facts which constituted the offense and bring the case within this provision of the statute, and particularly and specifically prescribing the punishment to be inflicted therefor. E. S. sec. 3478. This was a proper case to be punished summarily, under this section. The misconduct "was committed within the immediate view and presence of the court, within its meaning. People ex rel. Hackley v. Kelly, 24 N. Y. 74. And tbe order seems to be in strict compliance witb tbe direction of this section. It recites, industriously, all tbe proceedings in tbe discovery attempted, and tbeir failure, and that it is in tbe power of tbe petitioner to comply substantially witb its requirements, and it particularly and specifically prescribes tbe punishment tberefor. It was not needful that tbe court should find and recite in tbe order that tbe misconduct was such as to defeat, impair, impede, or prejudice tbe rights or remedies óf tbe plaintiffs. It does not go upon that theory at all. It is for a direct disobedience and contempt of tbe authority of tbe court. Independently of any statute, tbe courts have inherent power to punish offenses against tbeir dignity or authority.

• When tbe misconduct consists of an omission to perform some act or duty which is yet in tbe power of tbe defendant to perform, be shall be imprisoned only until be shall have performed such act or duty. In such case tbe order or warrant shall specify tbe act or duty to be performed. R. S. sec. 3491. Tbe order and commitment are both in strict compliance witb this section. Both specify particularly tbe act to be performed, and provide that tbe petitioner shall be committed to tbe common jail of Jackson county until it shall be done. The order adds, what would be implied without mention, “ or until tbe further order of tbe court.” Tbe term of tbe imprisonment is as definitely defined as tbe nature of tbe case will admit, and is not rendered indefinite by tbe fact that tbe court has tbe power to terminate it without compliance.

It is tbe duty of tbe court or officer, in a habeas corpus proceeding, to remand tbe prisoner whenever it appears that be is detained in custody for any contempt, specially and plainly charged in tbe commitment, by some court, officer, or body having authority to commit for tbe offense so charged. R. S. sec. 3427. It would be idle to issue the writ of habeas corpus in a case where the court must, in the end, remand the prisoner.

By the Gourt.— The application for a writ of habeas corpus is denied.

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Rehearing

The petitioner moved for a rehearing. The following opinion was filed September 26, 1895:

Newman, J.

This contempt is plainly punishable under ch. 150, E. S. Eor, although it is made a criminal contempt by sec. 2565, E. S., its punishment as a civil contempt is plainly, in terms and in detail, provided in ch. 150. It is a criminal offense and something more. It is not only contumacy toward the court, but it tends, necessarily, to defeat the remedies of the parties. Under either statute, such contempt, when committed in the immediate presence of the court, is to be punished summarily. E. S. secs. 2566, 3478. And when it is yet in the power of the delinquent to perform the act required, he is to be committed only until he shall have performed the act required and until he shall have paid such fine as shall be imposed and the costs and expenses of the proceedings. E. S. sec. 3491. In this case there was no fine or costs imposed. It was a simple case of commitment until the act required shall be performed. It seems to be plainly authorized by the statute.

There is nothing in State ex rel. Lanning v. Lonsdale, 48 Wis. 348, which is in conflict with this view of the statute. In that case the contempt alleged consisted in the. refusal of Lonsdale to answer certain interrogatories propounded to him when giving his deposition as a witness before a court commissioner. The proceeding to punish him for the contempt was under sec. 4066, R. S. Lonsdale was committed until he should answer the interrogatories, not only, but until he should pay a fine of $221.17, imposed as costs and expenses of the proceedings. The court say (p. 368): “We are unable to find in it [the case] any feature which brings it within the statute authorizing the court in such proceedings to adjudge indemnity to the aggrieved party instead of imposing a fine upon the offender. We must hold, therefore, that the order is unauthorized by law, and for that reason it must be reversed.”

This case presents no such question. In this case neither fine nor indemnity was imposed. That part of the order which committed Lonsdale until he should answer, which is the same order complained of in this case, does not seem to have been questioned in that case. And nothing is said in the decision which is perceived to be in conflict with the view which the court has taken of this case.

In re Pierce, 44 Wis. 411, does not touch the question. That was a case of purely criminal contempt punishable under ch. 117, R. S.-secs. 2565, subd. 5, to 2568; while this is a civil contempt as well, punishable under ch. 150.

By the Oov/rt.- The motion for a rehearing is denied.