State v. Burrows, 33 Kan. 10

33 Kan. 10 | Kan. | 1885

The opinion of the court was delivered by

JOHNSTON, J.:

On the 11th day of August, 1884, the judge of the district court of Marion county issued an attachment against Melvin Burrows for contempt in willfully refusing to comply with the orders made by said judge in certain proceedings in aid 'of execution pending before him. The attachment Avas returned, and a hearing was had before the judge at chambers, on the 30th day of August, 1884, when he was adjudged guilty of contempt, and was committed to the jail of Marion county until he should comply with the orders of the judge, which he had disobeyed. From this order and judgment he appeals to this court.

The first question which we meet in this case, is raised by an objection to that part of the record AA'hich purports to be a bill of exceptions, because it Avas not settled and signed within the time prescribed by law. The record shows that the decision of the judge, to which exception is taken, was made on the 30th day of August, 1884, and that the bill of exceptions was presented and allowed on the 18th day of September, 1884. It is provided that bills of exceptions in criminal tañáis shall be settled, signed and filed in the same manner as in civil actions; and § 300 of the code of civil procedure prescribes that—

“The party objecting to a decision must except at the,time the decision is made, and time may be given to reduce the exception to writing, but not beyond the term. If the decision objected to is made in vacation, or at chambers, the judge may give time to réduce the exception to writing, not exceeding ten days.”

The language of the statute is plain, and clearly limits the time within which bills of exception may be presented and allowed. It has been held by this court, that a bill of exceptions not filed within the time prescribed by law, forms no part of the record, and that the judge cannot, even with the consent of counsel, extend the time for reducing the exceptions to writing and presenting them for allowance, beyond the statutory limit within which it must be completed; 'and that this court cannot take cognizance of, or consider as a part of the record, a bill of exceptions which is not allowed and authenticated in the manner and within the time prescribed by the statutes. (Brown v. Rhodes, 1 Kas. 359; Gallaher v. Southwood, 1 id. 143; Lownsberry v. Rakestraw, 14 id. 151-154; The State v. Bohan, 19 id. 48.)

The rule prescribed by the statute is a reasonable one. The theory is that the exceptions should at once be reduced to. writing, and allowed and settled while the facts and proceedings in the case are fresh in the minds of judge and counsel The party objecting to the decision of a judge, made in vacation or at chambers, should prepare and present his bill of exceptions at the time of the hearing at which the rulings or decisions objected to are made, and while the counsel for the opposite party are present. If additional time is necessary or desired in which to reduce the exceptions to writing, application should be made to the judge therefor, who may give time not exceeding ten days. If no time is asked or given at the conclusion of the hearing before the judge, the parties are concluded, and are not thereafter entitled to have the exceptions allowed or settled. These requirements are absolute, and we cannot disregard them. In this case there was no extension of time asked for by the appellant, or granted to him. From the statement made by the judge, attached to the bill of exceptions, it i spears that on the 6th of September, 1884, the appellant appeared before tbe judge and presented for bis allowance an incomplete and imperfect bill of exceptions, which the judge refused to allow and settle. The appellant then gave notice to the opposite party that the bill would be submitted to the judge for his allowance on the 18th day of September, which was accordingly done, and the bill was then allowed, signed, and ordered to be made a part of the record of the cause, against the objection of the appellee. It will be observed that the bill of exceptions brought up in the transcript was presented and allowed nineteen days after the decision was made, and at a time when the power of the judge to settle and sign the exceptions was at an end. The bill of exceptions, therefore, is not properly a part of the record, and we are compelled to disregard it.

The bill of exceptions having been stricken out, there remains in the record only the transcript of the findings and judgment in the contempt proceeding, and any question raised thereon is properly before us. Most of the argument made by counsel on behalf of appellant is directed to alleged errors which appear only in the bill of exceptions, and are excluded from our, consideration. In the absence of the testimony in the case, we are bound to assume that it fully supports the findings, and that the proceedings were regular except so far as error "may appear in the entry of the findings and judgment.

^Appellant contends that he cannot be held guilty of con- \ in this case, because the order of the judge to which he refused to yield obedience was void. The ground upon which he makes this claim is, that the examination of the judgment debtor in the proceedings in aid of execution was held at Cottonwood Falls, outside of the county where the judgment debtor resided, and to which the execution was issued. It is true that § 482 of the code, in referring to the power of the judge to require a judgment debtor to appear and answer concerning his property, provides that it shall be before “such judge, at a time and place specified in such order, within the county to which the execution was issued.” The examination of appellant in Chase county was irregular. But in this case it appears from tbe findings of the judge, that the appearance of the appellant outside of Marion County, where he resided, and his examination at Cottonwood Falls, Chase county, was voluntary, and apparently was held there for his convenience. It appears that an order was first issued, requiring the appellant to appear in Marion county and answer concerning his property. This order was duly served upon the appellant, but he failed to obey it, and vras cited to appear at Cottonwood Falls — where the judge was then holding court — and show cause why he should not be punished for contempt, in refusing to conform to the requirement made by the judge. The appellant accordingly appeared under this citation and purged himself of contempt, and then and there he volunteered to submit to an examination, which was reduced to writing, and which he signed without objection or exception. The further consideration of the case was — with the consent of all the parties — then adjourned until a later day in Marion county, where the hearing was completed, and where the order objected to was made.

It will be seen that the proceeding was instituted in the proper county, and service upon the appellant was there made. The examination of the appellant, and other testimony taken ' outside of the county, being in writing, was submitted by appellant for the consideration of the judge, at the adjourned hearing in Mai’ion county, and no question or objection vtfas 1 made by the appellant that it had been taken and reduce&dt? writing in Chase county. Whatever of irregularity there was in the examination of appellant outside of • the county where the execution issued, was therefore waived. The appellant, having introduced and read in evidence the .testimony taken outside of the county, with the consent of the opposite party and the approval of the judge, cannot thereafter be heard to object. (Hobart v. Frost, 5 Duer, 673; Viburt v. Frost, 3 Abb. Pr. 119; Buel v. Lockwood, 3 N. Y. 197; The State v. Adams, 20 Kas. 325.)

As another ground of error, it is insisted by the appellant that the order which he refused to obey, and upon which refusal the proceeding for contempt is founded, was one which the judge had no authority to make; that the order made was one commanding the appellant to pay a debt, and that to commit him for contempt in failing to obey the order would in effect be imprisonment for debt. In such proceedings, “the judge may order any property of the judgment debtor, not exempt by law, in the hands either of himself or any other person or corporation, or due to the judgment debtor, to be applied toward the satisfaction of the judgment, and may enforce the same by proceedings for contémpt, in case of refusal or disobedience.” (Code, §490.) In this case the judge found that the appellant had property which consisted of money in his possession and under his control, not exempt by law, that should be applied toward the satisfaction of the judgment, and ordered that it be so applied. It was not an order to pay a debt, but was a direction to apply certain property, discovered upon the examination to be in the possession of the appellant, to the satisfaction of the judgment against him.

A showing by the judgment debtor that his disobedience of the order was not willful or contumacious, but was occasioned by a lack of money or property with which to satisfy the judgment, would ordinarily entitle him to a discharge; and a commitment for contempt, based on the .refusal to obey an order, in such a case would probably be in violation of our constitution, which forbids imprisonment for debt except in cases of frhud. But whether the testimony before the judge showed or tended to show fraudulent conduct on the part of the appellant in the concealment of his property, or in seeking to avoid the application of money or property to the satisfaction of the judgment, or whether he was willfully obstinate in his conduct, we cannot know. None of the testimony is before us.

"We refrain from expressing any opinion upon the question of how far a judge may go by an order made in proceedings in aid of execution to enforce a payment of pecuniary obligations, until it is fairly presented to us. With nothing before us but the findings of the judge, we are unable to say that the order made in this case is unwarranted or erroneous, and therefore it will be affirmed.

It appears that the name of the late attorney general is signed to one of the motions filed in this ease, but it was without his knowledge, and no part was taken by him in any of the proceedings in the cause.

All the Justices concurring.