Latham v. Jones

151 F. 207 | 7th Cir. | 1907

BAKER, Circuit Judge

(after stating the facts). Counsel for the receiver saj that plaintiff in error was guilty of three contumacious acts: First, in failing to appear before the referee on January 17th; second, m Jailing to produce tiré document before the referee in obedience to the* court’s order of the 19th; and, third, in sending the document to his client on the ,16th:• - . ' .......

At the end of plaintiff in error’s examination by counsel for th’e receiver no matter was left open except the receiver’s right to compel the production of the document. Plaintiff in error had attended in obedience to an ordinary subpoena. When the question arose',and plaintiff in error answered that if he had the paper he would not voluntarily produce it, counsel said “We will have to subpoena you to produce it.” No feés were paid or tendered for attendance on the 17th. No subpoena duces tecum was served. No notice of an appli-, cation for an order to produce was given. In avoidance, it might be said that each of such steps would have been fruitless on account of 'plaintiff in error’s act in sending the document to his client in the afternoon of the 16th. But this, if true, would merely confess the obvious, that the facts relating to the first charge are worthless except in so far as they may bear upon the third.

The second charge comes to the same point. Plaintiff in error was not brought into court by legal process. He chanced to be present when the motion was called’ -up. He did not enter his appearance. He did not consent to the order. He asked to have his day in court in resistance to the motion. If in truth a plea of privilege were sustáined, an order to produce would be erroneous. This order, being a determination of rights without a hearing, a judgment without process and without trial, was void. And when it is urged that plaintiff in error was not entitled to a hearing because of his act in turning the paper back to his client, the whole case is brought down to the third charge.

This question of criminal contempt, for an act not committed in the presence of court or referee, was not formulated in an information or complaint, was not even stated in the oral motion for the writ of attachment.

■ Passing that, we will take the finding as the complaint. The court found that the contract between Johnson and Creelman provided for the payment of debts of the Johnson & Knox Lumber Company; that the filing of the petition and the appointment of the receiver subjected the contract to the jurisdiction of the' court; that plaintiff -in error sent the document beyond the reach of the process of the court for the purpose and with the intent of defeating or impeding the administration of justice; that Johnson gave the document to plaintiff in error because he was an officer of the court; that plaintiff in error held the paper as an officer of the court and in sending it beyond reach of process was guilty of misconduct in his official capacity.

The finding that the contract provided for the payment, of debts of the lumber company is in the teeth of the sworn answer.' Of course the filing of the answer did’not require the discharge of ¡plaintiff in error. It was open to the moving party or to the court to bring out countervailing evidence. The only claim of such is the examination before the referee’s stenographer. The statements therje.. that the contract was wholly between Johnson and Creelman, and (that Johnson in providing for his indebtedness to Creelman included his liability as indorser or guarantor of a note executed by the luimber com - pany as maker, instead of contradicting, supports the answi '

The document was not sent beyond the reach of the process of the court.' ' Johnson at Milwaukee, though in another district, as a witness-was subject to the court’s process as fully as if he had been in the Northern District of Illinois. Section 876, U. S. Rev. St. [U. S. Comp. St. 1901, p. 667]. Further, the contract was in duplicate, and one copy was in Chicago, subject to use in disputing plaintiff in error’s-sworn answer or for any other purpose to which it could legitimately be put.

There is no evidence to show that Johnson put the document in plaintiff in error’s hands as an officer of the court below. The record is that plaintiff in error received the paper as attorney for Johnson. Not a shadow of a suggestion appears that this was done for the purposes of or in connection with any matters in the District Court.

As to plaintiff in error’s intent in returning the paper to his client, the finding repudiates the sworn answer. Concededly, if an act speaks for itself as being contumacious, the respondent’s oath that no disrespect was intended need not be accepted. But nearly every page of the record confirms the answer. Plaintiff in error’s repeated endeavor was to obtain a hearing upon his and his client’s rights. Nothing in the record warranted a denial of a hearing on the mere-fact that he had turned the paper over to his client. He was not under process for its production. He did not put it beyond the reach of process. It was not even proved that the document was beyond his own ability to produce. While there is no direct evidence that he-continued able to produce the paper, an inference to that effect is deducible from his protest against the entry of the order at 11:3() o’clock that he produce it at 2, namely, that it was a physical impossibility to get the document back from Milwaukee by that hour, and also from his testimony touching motive, namely, that he deemed it his duty, according to Dord Mansfield’s holding in Rex v. Dixon, 3 Burrows, 1687, to return the paper to his client who owned it, but that, if on a hearing of a motion against himself the ultimate decision should be against his contentions, he would advise his client to produce the document.

Our conclusion being that the findings of the court, and particularly the finding of criminal intent, were each without warrant, it is unnecessary to pass upon the contention that counsel for the receiver, in conducting the examination, had an entirely erroneous conception; of the functions of a receivership in bankruptcy pending adjudication.

The judgment is reversed, with the direction to dismiss the proceedings.