190 P. 952 | Utah | 1920
D. H. Thomas and Ashby Snow, attorneys at law and officers of this court, were adjudged guilty of contempt by the district court of Salt Lake county, and they appeal.
The contempt proceedings here in question arose out of the garnishment proceedings in the case of West Cache Sugar Co. v. John A. Hendrickson and Lorenzo N. Stohl, defendants, and Zion’s Savings Bank & Trust Co., Garnishee and Appellant, 56 Utah, 327, 190 Pac. 946, which we have just considered. A judgment was duly entered in said action against the defendants Hendrickson and Stohl. The appellants here were the duly authorized attorneys of the Zion’s Savings Bank & Trust Company hereinafter called garnishee, and in the transactions giving rise to the contempt proceedings they acted as such. The judgment entered in the action aforesaid not being satisfied, a writ of garnishment was issued therein, which was served on the garnishee on the 7th day of June, 1919. To the writ of garnishment, in addition to the usual statutory interrogatories, was added the follow
The acts and conduct of the appellants constituting the alleged contempt were by all the parties hereto, and by the district court, treated and considered on the theory that they constituted, if anything, a criminal contempt, and for that reason alone, without further considering the character or nature of said acts, words, and conduct, we shall treat them upon the same theory.
The appellants have assigned numerous errors, which, so far as we deem them material, we shall now proceed to consider.
It is insisted that the court was without jurisdiction because no proper affidavit or statement was filed as a basis for the contempt proceedings. Comp. Laws, Utah, 1917, section 7060, so far as material, provides:
“When the contempt is not committed in the immediate view*321 and presence of the court, or judge at chambers, an affidavit shall be presented to the court or judge of the' facts constituting the contempt, or a statement of the facts by the referees or arbitrators or other judicial officer.” *
It is contended that the statement oí tbe deputy sheriff, which he made to the Gourt and which was reduced to writing, in no sense was an affidavit, and that therefore the statute was not complied with, which, it is contended, is fatal to the jurisdiction of the court. As we have seen, the contempt proceedings were initiated upon the court’s own motion, and in the manner stated. It may be conceded that the method pursued by the court in taking the statement of the deputy sheriff by questions and answers and in basing the order to show cause thereon, while somewhat irregular, was, however, not void, A mere cursory reading of the statute will disclose that it is not absolutely essential that under aE circumstances the facts upon which the order to show cause is based must be stated in the form of an affidavit. It seems that if the facts appear and are sufficient to authorize the court to act, the form of the statement is immaterial. At all events, the court would not be without jurisdiction merely because the facts were made to appear to the court in the form of a statement rather than in the form of an affidavit and designated as such. Moreover, in this case the court treated the statement of the deputy sheriff precisely as though it were in the form of an affidavit, and the appellants were permitted to assail it both by demurrer and by motion. They could have done no more if the facts had been stated in the form of an affidavit. Again, the statement contained all the essential facts to authorize an order to show cause, and thus the appellants were not prejudiced in any way or to any extent. We are clearly of the opinion that the facts contained in the statement v were sufficient
It is next insisted that the order to open the safety deposit box was not a “lawful order,” and for that reason the ap
The next assignment is that “the court erred in finding that the acts and conduct of the defendants [appellants] constituted criminal contempt.” This, to our minds, presents the serious question in this proceeding. It will be observed that the order was not directed to the appellants, or to either of them, but was directed to the garnishee. It must also be kept in mind that while the appellants were not parties in interest they, nevertheless, were not merely volunteers, but by virtue of their calling, and as attorneys of the garnishee, were called upon to give advice to their client in a matter which was of great importance to such client, as pointed out in the preceding case. While it is the duty of attorneys at law, who are officers of the court,
This means that courts are open for the purpose of having any order or judgment assailed in the proper manner and at the proper time, precisely the same as they are open for the redress of wrongs and for the enforcement of rights. If, therefore, the appellants had good cause to believe, and in good faith did believe, .that the order in question was in excess of the court’s power or jurisdiction, or that it was improvidently issued and for that reason vulnerable, or that
*322 “All courts shall be open, and every person, for an injury done to him in bis person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this state, by himself or counsel, any civil cause to which he is a party.”
We are also aware that in contempt proceedings appellate or reviewing courts should be careful in interfering with the findings and judgments of the courts in such proceedings. If the alleged contempt here were a direct contempt, that is, one committed in the presence of the court, or, even, if the alleged offensive words had been uttered and the objectionable conduct had occurred before the order in question was made and while the question whether, it should or should not be made was still pending, as was the case in Re Pryor, supra, the case would be somewhat different. Under such circumstances we should long hesitate before we interfered with the findings of the court and with its judgment adjudging appellants guilty of contempt. In such cases the court cannot, with any degree of accuracy, reflect the proceedings in the record; nor can it accurately describe the demeanor and conduct of counsel which occurred in the court’s presence. In a case like the one at bar, however, he have substantially the same opportunity to judge of the conduct and of the acts that the trial court had. True, that court had the advantage of hearing and seeing the witnesses testify, and in case of conflict was in a better position than we are to pass upon the weight and credibility that should be given to their statements. In this case, however, there is little, if any, real conflict respecting the controlling
Such is also the law in England. Moreover, the mere fact that an attorney has advised his client to act contrary to the order or judgment, or to disregard it, does not necessarily constitute a contempt of court. In re Kepecs, 123 N. Y. Supp. 872.
The record in this case shows that the trial court exercised .great, almost infinite, patience in trying the case. The appellants were given every opportunity to exculpate themselves, and, as we think, succeeded in doing so. In our judgment, the only serious error of the court lies in the fact that it laid too much stress upon the naked fact that the appellants had advised the cashier to refuse to comply with the order to open the box and deliver its contents to the sheriff. The court seemingly overlooked the fact, and did not give sufficient consideration to appellants’ efforts and preparations and purposes to assail the order, and in advising the cashier not to open the box for the other reasons hereinbefore stated.
In view of the circumstances of this ease, we are of the opinion that appellants Avere. acting within their rights in what they advised; that the only offense they, or either of them committed was in the use of improper language, which, while not' excusable, nevertheless, falls far short of being contumacious, and hence did not constitute a contempt of court.
In view that the proceedings in this case were initiated by the court itself, and that the plaintiff in the principal action
For tbe reasons stated tbe judgment adjudging tbe appellants guilty of contempt and imposing a fine is reversed, and tbe cause is remanded to tbe district court, with directions to vacate and set aside tbe findings and judgment, and to dismiss these proceedings and to discharge tbe appellants.