49 S.C. 199 | S.C. | 1897
‘The opinion of the Court was delivered by
This is an appeal from an order of Judge Benet, Circuit Judge, adjudging the defendants guilty of contempt, and imposing sentence therefor, upon a rule to show cause, issued in the case of Theodore Wenzel et al. against Palmetto Brewing Company et al. The alleged contempt was disobedience of an order made in said case, appointing a receiver and enjoining creditors and stockholders of the Palmetto Brewing Company from prosecuting any action against the said company except in said cause. On appeal taken from this order, this Court reversed the same, on the ground that the complaint in the cause did not state facts sufficient to justify a court of equity in displacing corporate control of the company’s property at the suit of a stockholder. See Wenzel v. Palmetto Brewing Company, 48 S. C., 80.
Having disposed of the preliminary question, we proceed now to consider other questions raised in the case. It will be proper, first, to state something of the facts. On December 30th, 1895, Theodore Wenzel and John W. Burmes-ter commenced the above entitled action against the Palmetto Brewing Compan}'-, J. H. Doscher, the Security Savings Bank, and the De Da Vergne Refrigerating Machine Company. The plaintiffs were minority stockholders in the Palmetto Brewing Company, and sought to enjoin said company, its servants, agents, and its president, J. H. Doscher, from exercising any control over the property and franchises of said company, to enjoin creditors from prosecuting any action against said company except in said proceedings, and for the appointment of a receiver. On December 31st, 1895, Judge Benet made an order enjoining and restraining the company, its servants and agents, and its president, J. H. Doscher, from interfering in any manner with the property
On the 8th day of January, 1896, the rule to show cause why a receiver should not be appointed, issued by Judge Benet, December 3ist, 1895, came on to be heard. The Palmetto Brewing Company and J. H. Doscher made return to the rule, by their attorneys, Julian Michell and Henry A. M, Smith, and the Security Savings Bank, by its attorney, J. N. Nathans, also made return. In the return of the Security Savings Bank, the attention of the Court was called to the fact that the United States Circuit Court, by its order of January 6th, 1896, had appointed A. F. C. Cra-mer as receiver of the Palmetto Brewing Company, and that said receiver had taken possession of the property and assets of said corporation. As already stated, the De Da Vergne R. M. Co. did not appear and made no return. After hearing the returns and argument thereon, Judge Benet, on
On the 16th January, 1896, August Bequest, the receiver of the Palmetto Brewing Company, appointed by Judge Benet, filed his petition in the United States Circuit Court in the case of De La Vergne Refrigerating Machine Company v. The Palmetto Brewing Company et al., setting out the proceedings in the State Court, showing his appointment as receiver, and praying that the property and assets of the Palmetto Brewing Company in the possession of A. E. C. Cramer, the receiver appointed by the United States Circuit Court, be turned over to the said Bequest by virtue of his appointment as receiver by the State Court. Upon this petition, the United States Circuit Court, on January 17th, 1896, made an order requiring all the parties, the De Ua Vergne Refrigerating Machine Company, the Palmetto Brewing Company, the Security Savings Bank, the Consumers Coal Company, A. F. C. Cramer, receiver, to show cause on the 21st January, 1896, why the property should not be turned over to the receiver of the State Court. On the day set, returns were made, in obedience to this order, by the Palmetto Brewing Company, through their attorneys, Messrs. Michell & Smith; by the De Da Vergne Refrigerating Machine Co., through its attorney, J. N. Nathans, Esq.; by the Security Savings Bank, through its attorney, Huger Sinkler, Esq.; by the Consumers Coal Company, by its attorney, James Simons, Esq.; by August Bequest, receiver, through his attorneys, Messrs. Mordecai & Gadsden. On the 16th January, 1896, the Security Savings Bank, by its
On the 21st February, 1896, A. Bequest, receiver, made and filed his verified report to the State Circuit Court, setting forth the above facts, and asked the Court for instructions. Upon the filing of the report, Judge Benet, as he • states, of' the Court’s own motion, issued an order, dated February 21, 1896, requiring J. H. Doscher, A. F. C. Cra-mer, and E. H. Sparkman to show cause before him why they should not be attached for contempt, for violation of the order of injunction issued on December 31st, 1895. The defendants made return March 2d, 1896, but Judge Benet reserved his decision thereon, and by several orders, dated respectively March 5, 1896, March 14, 1896, March 28, 1896, postponed the decision upon' said rule and returns from time to time until April 13, 1896, where the presence of the parties in Court was required to have and receive the judgment of the Court. On the 27th of April, 1896, before decision on the above mentioned rule, Judge Benet issued, of his own motion, a rule against J. N. Nathans, Julian Mitchell, H. A.-M. Smith, James Simons, and Huger Sink-ler, to show cause why they should not be adjudged in contempt of court for violation of the order of injunction issued December 31,1895, why each of them should not be suspended and removed from his office as attorney and counselor of the Circuit and Probate Courts of this State, during the pleasure of the Court or the continuance of the
Blach defendant appeals on numerous exceptions, but we will not attempt to consider these exceptions seriatim. We will consider the principal exceptions under a few general propositions.
The- power of this Court to entertain an appeal from a judgment in contempt proceedings has not been and could not be questioned. Our appellate jurisdiction, however, is limited to the ascertainment whether there is error of law
As to A. F. C. Cramer. The specifications against defendant, Cramer, were that (1) he was in possession of the propert}' of the Palmetto Brewing Company as receiver, appointed by the United States Circuit Court on the 6th day of January, 1896, in the case of De Da Vergne Refrigerating Machine Company v. Palmetto Brewing Company, Consumers Coal Company, and Security Savings Bank, and refused to deliver the said property to the receiver appointed by the State Court; (2) that in the return of the Consumers Coal Company, which was sworn to by A. F. C. Cramer, its president, which return was made pursuant to a rule issued by the United States Circuit Court, at the instance and on the petition of A. Bequest, the receiver of the State Court, Mr. Cramer used the following language: “That this defendant is a party to the above entitled action in this Court, which is instituted for the protection of the creditors of the said brewing company; and for further cause this respondent shows that the property having first been taken possession of by this Court, by its receiver, for the benefit of creditors, who are entitled to payment of their demands before stockholders, the same should not be
As to J. H. Doscher. The specifications are (1) that he was served with a copy of the order of injunction December 31, 1895, as an individual and as president of the Palmetto Brewing Compan}'. (2) That in the return of the Palmetto Brewing Company, made in obedience to a rule issued by the United States Circuit Court on the petition of the receiver appointed -by the State Court, which return was sworn to by J. H. Doscher, the following language was
As to E. H. Sparkman. The specifications are (1) That on the 16th day of January, 1896, the Security Savings Bank filed a cross bill in the United States Circuit Court, duly sworn to by E. H. Sparkman, as cashier. (2) That the subpoena on said cross bill was duly issued on said date and served on Cramer, as president of the Consumers Coal Company, and on said Doscher, as the president of the Palmetto Brewing Company. (3) That at the hearing upon the rule issued by the United States Circuit Court, the Security Savings Bank, represented on that occasion by Mr. Huger Sinklef, made a sworn return, signed by E. H. Spark-man, cashier, in which return, among other matters, the respondent said that, upon the face of the complaint in the Court of Common Pleas, it appears that the plaintiff had
As to James Simons. The specification in the rule is, that he violated the order of injunction, “in that, with actual knowledge of the order of the 31st day of December, 1895, he appeared in the United States Circuit Court in said cause for the Consumers Coal Company, filed a return therein, apparently placing this Court in contempt, and filed a cross bill for the Consumers Coal Company in said United States Court,
As to Huger Sinkler. It is unnecessary to add anything to what has been said in considering the case of E. H. Sparkman. The facts stated do not constitute a contempt of court.
As to J. N. Nathans. The specifications are, that he violated the order of injunction, “in that, having actual knowledge of the restraining order of December 31st, 1895, he being then and now a duly elected director of the Security Savings Bank, one of the defendants herein, as also its duly elected solicitor, and having filed its return and other papers in the cause, as such solicitor, for the apparent purpose of evading the jurisdiction of this Court, prepared, swore to as solicitor of the De Da Vergne Refrigerating Machine Company, signed as such solicitor, and caused to be filed on the 6th day of January, 1896, in the United States Circuit Court for the District of South Carolina, the bill of complaint of the said De Da Vergne Refrigerating Machine Company against the Palmetto Brewing Company, causing said Security Savings Bank, in such last named cause, to be ostensibly represented by the said Huger Sinkler, Esq., and in such cause making return, setting forth that the proceedings herein in this Court were irregular, null, and void, and by said return seeming to hold the proceedings of this Court herein in contempt, and in said cause in the United States Circuit Court causing to be appointed a receiver, in order, apparently, to evade the appointment of a receiver by this Court, thereby seeming to be guilty of acts unbecoming an attorney, solicitor, and counselor of this Court.”
It is true, the defendants expressed no' regret for their acts. This is, no doubt, due to the fact that the manly self-respect of honorable men will not permit them to make false expressions of regret, which they do not feel, for acts done honestly and conscientiously. We do find, however, expressions of regret that the Court had misconceived their purpose and intention, and the Supreme Court said in Watson v. Bank, supra, it would have been better satisfied to have found in the returns of the defendants in that case, “a declaration of their regret that his Honor, the Judge, had misconceived their purpose and intention.”
We regret that the lack of time prevents the condensing of our views herein announced. The case is one of great interest and importance. We have striven to reach a sound and just result. We trust no unwholesome result will follow the reversal of the judgment of the learned Circuit Judge, who sought only to vindicate the authority of his Court and its mandate. The order of a Court which is not absolutely void must be respected and obeyed until vacated by the proper authority. The orderly administration of law requires this duty at the hands of all, but especially is this duty incumbent on attorneys and officers of the Court, for if those who minister in the temple of justice disregard and slight its rules, there is no hope for the triumph of law and order among the people. We are glad to say in this case
The order appealed from is reversed, and the proceedings for contempt dismissed.