232 Ill. App. 462 | Ill. App. Ct. | 1924
Lead Opinion
delivered the opinion of the court.
In Stuart v. People, 4 Ill. (3 Scam.) 395, 404, it is said: “Contempts are either direct, snch as are offered to the court while sitting as such, and in its presence, or constructive, being offered, not in its presence, but tending, by their operation, to obstruct and embarrass, or prevent, the due administration of justice.” And it is held in the Stuart case (p. 405) that the power to punish for contempts is inherent in every court of justice, and that in this power “would necessarily be included all acts calculated to impede, embarrass, or obstruct the court in the administration of justice,” and that “such acts would be considered as done in the presence of the court.” The doctrine of the Stuart case has been reaffirmed in People v. Wilson, 64 Ill. 195, 211; Dahnke v. People, 168 Ill. 102, 106, and subsequent cases. In the Dahnke case (p. 107) it is said that “the power of the court in the matter of contempt cannot be defined within any limits, and that the primary question in all cases of alleged contempt is ‘whether there has or has not been an interference or an attempt to interfere with the due administration of justice.’ ”
Proceedings for contempt of court are of two classes: Those which are criminal in their nature, which are sometimes called common-law contempts, and those which are intended as purely civil remedies which ordinarily arise out of the alleged violation of some order entered in the course of a chancery proceeding. (People v. Seymour, 191 Ill. App. 381, 388.) In O’Brien v. People, 216 Ill. 354, 368, it is said: “When the contempt consists of something done or omitted in the presence of the court tending to impede or interrupt its proceedings or lessen its dignity, or out of its presence in disregard or abuse of its process, the proceeding is punitive or criminal, and the penalty is inflicted by way of punishment for the wrongful act and to vindicate the authority and dignity of the people, as represented by their judicial tribunals. In such cases the application for attachment may be made in the original cause, yet the contempt proceeding will be a distinct case criminal in its nature. Cases of this kind are clearly distinguished from cases where the parties to a civil suit, having the right to demand that the other party do some act for their benefit, obtain an order from a proper court commanding the act to be done, and upon refusal the court, by way of executing its orders, proceeds as for contempt for the purpose of advancing the civil remedy of the other party to the suit.” (See also, Hake v. People, 230 Ill. 174, 185; People v. Elbert, 287 Ill. 458, 463; People v. Peters, 305 Ill. 223, 226.) In the Elbert case it is said: “The dividing line between the acts constituting criminal and those constituting civil contempts becomes indistinct in those cases where the two gradually merge into each other. In those cases con-tempts have been classified and punished by the courts in some jurisdictions as criminal contempts and in others as civil contempts. * * * In most cases where they thus rest on the boundary line they are both civil and criminal contempts, and so far as the rights of the contemnors are concerned may be punished as either.” As to the present case, we are of the opinion that the alleged contempt is one which should be considered as criminal in its nature. And counsel for respondents in their printed brief here filed contend that the charge of contempt should be so considered.
It is the law of this State that, if the offense charged is a criminal contempt, the respondent may file a verified answer to the rule, or he may insist that interrogatories be filed for him to answer under oath, and if his verified answer in either case is sufficient to purge him of the alleged contempt, he must forthwith be discharged. (People v. Seymour, 191 Ill. App. 381, 391; Welch v. People, 30 Ill. App. 399, 409; O’Brien v. People, 216 Ill. 354, 369; Hake v, People, 230 Ill. 174, 185; Oster v. People, 192 Ill. 473, 479; Storey v. People, 79 Ill. 45, 52.) In the Sake case it is said: “In cases of common-law jurisdiction for contempt the defendant is tried upon his answer made to interrogatories filed. No other evidence is heard. If the answers prove false the remedy is hy indictment for perjury, but if the party purges himself of the contempt by his answer he will be discharged.” In the Oster case it is said: “In criminal contempts alleged to have been committed out of the presence of the court, if the contemnor’s answer is sufficient to acquit of the charge he must be discharged.” In the Storey case it is said: “The defendant determines, by his own answer, under oath, whether he is guilty of that which is charged against him as a contempt of court, and if he fails thereby to purge himself, the court may, at once, impose the punishment.” In People v. Seymour, 272 Ill. 295 (affirming 191 Ill. App. 381) it is said (p. 301): “If, on the other hand, the answer admits the material facts charged to be true, and the facts constitute a contempt of court, punishment is imposed upon the answer. In either case no issue of fact is or can be formed.”
In view of the foregoing authorities we think that two questions of law are before us for decision, viz.: (1) . Do the undisputed and material facts as alleged in the petition constitute a contempt of court? And (2) . If so, have the respondents, or either of them, purged themselves of the contempt by their answers?
The petition of the Faheys for the adoption of the child was filed in the county court in April, 1922, and before the entry of the decree of adoption the petition was amended by adding the allegation to the effect that the father, Roy Burr, was not a fit person to have the custody of the child in that he had abandoned it. He appeared in court and contested the proposed adoption. The county court had jurisdiction of the subject-matter and of the parties, and under the amended petition, had power and jurisdiction to enter the decree of adoption of June 27, 1922. By the decree the child became the adopted child of the Faheys, and the decree has never been vacated or reversed. The father did not prosecute any appeal from the decree or sue out any writ of error. In August, 1922, he sought to obtain the custody of the child by a writ of habeas corpus. In his petition for such writ he alleged that the decree of adoption “was void because of want of jurisdiction” in the county court to enter it. On August 10, 1922, after a hearing on the writ, the court (Judge Miller) ordered that the child be placed in the custody of the father, and the child was then and there given him. As the county court had power and jurisdiction to enter the adoption decree, the order of Judge Miller, entered in a habeas corpus proceeding, was without warrant of law, because of want of power to enter it, and was void. (People v. Foster, 104 Ill. 156, 158; People v. Zimmer, 252 Ill. 9, 13; People v. Windes, 283 Ill. 251, 253; People v. Siman, 284 Ill. 28, 31; People v. Fisher, 303 Ill. 430, 434.) After the entry of said order, the Faheys sued out a writ of error from this Appellate Court to reverse it, and on December 16, 1922, on their motion, a supersedeas was granted. This did not have the effect of setting aside Judge Miller’s order, it being self-executing or one that had been executed. (Elliott’s Appellate Procedure, secs. 389, 392; Brown v. Schintz, 109 Ill. App. 598, 601; 2 L. R. A. [N. S.] p. 244, note.) On December 30, 1922, the Faheys filed a petition for a writ of habeas corpus before Judge Pam to have the custody of the child restored to them, which had unlawfully been taken from them by Judge Miller’s order. About this time McCaffrey was first employed as attorney for Eoy Burr and he entered the latter’s special appearance and that of Mrs. Denis Burr (the child’s grandmother in whose actual possession it then was) and filed a plea in their behglf, alleging that the court (Judge Pam) was “without jurisdiction of the subject-matter and of the parties.” Whether Judge Pam had power or jurisdiction to enter the order he did, restoring the custody of the child to the Faheys, depended, as it seems to us, upon whether Judge Miller had power to enter the particular order entered by him, and Judge Miller not having that power, we think that Judge Pam had power and jurisdiction, in that habeas corpus proceeding, to enter the order restoring the child to the custody of the Faheys. (People v. Siman, 284 Ill. 28, 32; People v. Whitson, 74 Ill. 20, 23.) In the Siman case it is said: “Jurisdiction in a particular case is not only the power of the court to hear and determine but also the power to render the particular judgment entered, and every act of the court beyond its jurisdiction is void. * * * The jurisdiction of a court or judge to render a judgment is always a proper subject of inquiry on habeas corpus, and is, in fact, the primary, and generally the only, subject open to inquiry. If such court or judge had no jurisdiction to render the judgment and sentence complained of the judgment is void, and one imprisoned under and by virtue of it may be discharged from custody on habeas corpus.” And Judge Pam’s order was one that should be obeyed, even if erroneous (Tolman v. Jones, 114 Ill. 147, 154; Leopold v. People, 140 Ill. 552, 557); and also one which could not be reviewed or successfully assailed in another habeas corpus proceeding instituted before any other court of equal general jurisdiction. (People v. Siman, 284 Ill. 28, 31.) And it is to be presumed that the respondents, McCaffrey and McDonnell, knew that this was the law. Yet, on January 11, 1923, the next day after the entry of Judge Pam’s order, they, as attorneys for Boy Burr, caused to be filed in the circuit court of Kankakee county, his petition for a habeas corpus writ for the custody of the child, which petition, it is admitted, respondents assisted in drafting. No mention is made in said petition of the habeas corpus proceedings before Judge Pam, or of the adoption proceedings or decree of adoption, but it is alleged therein that the child “is not detained by virtue of any order, judgment, decree or execution of any court of competent jurisdiction.” "Were it not for this allegation, Judge De Seim, to whom the petition was presented, could not lawfully have issued the writ. (Habeas Corpus Act, secs. 3, 21 [Cahill’s Ill. St. ch. 65, ¶¶[ 3, 21]; People v. Superior Court, 234 Ill. 186, 198.) The petition was so drafted as to conceal from the circuit court of Kankakee county (Judge De Seim) the true facts. The writ was issued and during the following night the child was taken by the officer from the home of the Faheys in Chicago and conveyed to Kankakee. Early on the following morning, and before a reasonable time had elapsed for the Faheys or their counsel to reach Kankakee, there was a hearing, at which both of the respondents were present, and although during the hearing the court was partially advised of the proceedings before Judge Pam, it does not appear that the court was informed by respondents, or anyone, of the date of the entry of Judge Pam’s order or of the adoption proceedings or decree, regarding all of which respondents then had full knowledge. It sufficiently appears that because of these concealments of the true facts the court entered the order awarding the custody of the child to the father until further order, and the father took the child into his custody. Subsequently, after being more fully advised, the court (Judge -De Seim) vacated said order, and further ordered that the child be restored to the custody of the Faheys. This last-mentioned order has never been complied with, and at the time of the entry of the contempt order in question, both the father and the child were not within the jurisdiction of the superior court of Cook county.
Under the material facts, which are undisputed, we are of the opinion that the acts and concealments of the respondents were calculated to, and did, impede and obstruct the orderly administration of justice and disclosed a wilful disregard of the power and authority of said superior court, presided over by Judge Pam, and were a violation of the order of said court, which it had the power and jurisdiction to enter, and that said acts and concealments were contemptuous. It appears that, immediately after Judge Pam’s order had been entered, the child was forthwith transferred to the Faheys; and it is argued by respondents ’ counsel that the proceedings before Judge Pam had been “terminated” and the order “executed,” and that there was no immediate interference by respondents as regards the “process” of the court in restoring the child to the Faheys’ custody. We are of the opinion, however, that the actions of respondents disclose a purpose on their part to endeavor, if possible, to set at naught Judge Pam’s order, otherwise than by suing out a writ of error, just as much as if they had caused a physical interference with the carrying out of the same after the parties had left the court room, or after the child had reached the Faheys’ home. At the conclusion of the arguments before Judge Pam on January 4,1928, the court stated that he had decided to restore the child to the custody of the Faheys, whereupon McCaffrey requested that the entry of the final order be postponed in order to give his clients time to determine what further action they might take in the matter, and the court granted the requested continuance to January 10. In the interim, on January 9, McCaffrey employed McDonnell to assist him in the pending matter, and it is evident that preparations were made shortly thereafter for the filing of the petition of habeas corpus before Judge De Seim in Kankakee county. Although that petition was not filed until the day after Judge Pam finally entered his order, it appears to have been signed and sworn to by Roy Burr in Kankakee county on the very day that Judge Pam entered his order, and the petition is as noticeable for the facts not alleged therein as the facts alleged. Apparently, respondents sought to accomplish the purpose mentioned through court procedure in a county other than the one in which the child then was, and by concealing from the court the true facts and state of affairs. And we do not think that the fact that Judge Pam’s order had been “executed,” in that the child had actually been transferred to the Faheys, can excuse respondents. The effect of that order was that the Faheys were entitled to the continuous custody of the child, which had been adopted by them by virtue of the unreversed adoption decree. In People v. Mortenson, 224 Ill. App. 221, it appears in substance that, in a controversy as to the right to the office of superintendent of schools in Chicago, the circuit court of Cook county had determined in November, 1919, in quo warranto proceedings, that one of the claimants, Chadsey, was the duly qualified appointee to such office and the legal incumbent thereof for a term expiring in March, 1923, and that the other claimant, Mortenson, be ousted from the office and be required to surrender to Chadsey the rooms assigned and occupied by such superintendent. Chadsey was permitted finally to enter said rooms and attend meetings of the school board and to that extent the order of the court was complied with, or “executed.” Subsequently, the attorney for the board and certain members caused to be drafted and adopted by the board certain rules which, in effect, transferred practically all of the statutory duties, prerogatives and authority of the superintendent of schools to the “associate” superintendent, Mortenson, who had been ousted as superintendent. It was held that the adoption of these rules was a violation of the order of the court finding that Chadsey was superintendent of schools and entitled to the office, inasmuch as the rules purported to take away from Chadsey the substance of the office, leaving him but the empty shell, and obviously was an attempt to defeat or circumvent said order, and was contemptuous. And the Appellate Court affirmed the order of the circuit court, entered in subsequent contempt proceedings, wherein certain parties responsible for the passage of said rules. and the acts complained of were sentenced to jail, or fined, or both for contempt of court. (See also, People v. Peters, 305 111. 223, 229.)
And we do not think that respondents, or either of them, by their answers have purged themselves of the contempt as alleged. The material facts are not denied. Whether the answer of either respondent is sufficient to acquit him of the charge is a question of law. (People v. Seymour, 191 Ill. App. 381, 393.) And we cannot accept, as a reason for discharging respondents, the disclaimer of each of any intentional disrespect to the court, or of any design to embarrass or obstruct the orderly administration of justice, or of any intent to conceal anything from Judge De Seim. (People v. Wilson, 64 Ill. 195, 212.) The disclaimer is inconsistent with the acts done and is contradicted by them. (People v. Seymour, 191 Ill. App. 381, 394.) And the belief of each of the respondents, as stated in the answers, that the justice of the cause was with the father, that he was a fit person to have its custody as against the uncle and aunt of the child’s mother, and that it was for the child’s best interests for the father to have its custody, is no justification for their acts. (People v. Seymour, 272 Ill. 295, 303.)
Our conclusion is that the order of the superior court, entered March 14, 1923, wherein the respondents, and each of them, were adjudged guilty of contempt of court, and fined and sentenced to jail, in the respective amounts and for the respective periods, as above mentioned, should be affirmed, and accordingly it is so ordered.
Affirmed,
Fitch, J., concurs.
Dissenting Opinion
dissenting: Without attempting a full discussion of the subject, I am of the opinion the order should be reversed, however much the course of plaintiffs in error is subject to censure.
It is familiar law that the writ of habeas corpus cannot be employed to perform the function of a writ of error. I think it was not only so used in this case, but also in disregard of the Habeas Corpus Act. Judges Pam and Miller were judges of the same court. Each had the power of a judge of that court to issue a writ of habeas corpus upon a proper petition, but neither could by such writ discharge a person from custody given by the order of the other, or upon the order of any other court of competent jurisdiction. Such power is expressly prohibited by the Habeas Corpus Act. Section 21 [Cahill’s Ill. St. ch. 65, ¶ 21] thereof provides that no person shall be discharged under the provisions of the act if he is in custody “by virtue of a final judgment or decree of any competent court of civil or criminal jurisdiction, or of any execution issued upon such judgment or decree,” etc. However erroneous was Judge Miller’s order, evidently entered in violation of that section, it was that of a court of competent jurisdiction to entertain a habeas corpus proceeding and placed the custody of the child with the father. Judge Pam’s order discharges it from that custody. In whatever other cases the writ may be employed to remove one from detention under a void order, I think the statute expressly forbids its use in a case like this.
Besides, the pleadings before Judge Pam disclosed that this court then had exclusive jurisdiction of the cause under its writ of error. In disregard of that fact he assumed to use the writ to perform the very function for which this court is organized. If he could thus disregard its jurisdiction and assume such function on the theory that Judge Miller’s order was void, then another court could in turn review his judgment on the same theory, and so the infant by a sort of legal shuttlecock would be bandied back and forth from the custody of one respondent to another as long as a court could be found to uphold such an indefensible practice.