94 Wis. 523 | Wis. | 1896
Some questions arising in this matter were before this court in In re Rosenberg, 90 Wis. 581. That was an application for a writ of habeas corpus. It was considered that, on that application, only the jurisdiction of the committing officer to make the order in any supposable circumstances which might arise in the progress of the cause in which it was made could be considered; that the proceedings out of which the order arose, and the regularity of the order itself, could not be adjudged in that proceeding. It was considered that the contempt contemplated by the order of commitment was the contempt of contumacy in refusing to make such full and truthful discovery of the property of the defendants as it was in the power of this defendant to make, by evasion and simulated ignorance; and that the court had power to punish such contumacy, summarily, as a contempt committed in the immediate presence of the court, by commitment until he should make such discovery; and that it was a civil contempt, punishable under ch. 150, E. S. This seems, upon the whole record, to be the true view of the purport of the proceedings.
The court had made no order that the defendant should make and submit a written statement of the property of the firm. What the judge said was by way of intimation of the scope and extent to which he deemed that the discovery should be required to reach. He gave the defendant’ time to enable him to make such discovery. He did not reduce his intimation to the form of an order, but left it oral. It was not an order either in form or intention. This is clearly
But in this case it is to be inquired whether the order act.ually made was justified in the actual circumstance. It seems clear from what has been said that a proper order which should commit the defendant until he should make full and truthful discovery of the property of his firm would not be so clear an abuse of the power of the court as would require its reversal by this court. The order actually made seems to do this. The most serious criticism upon it is that it speaks of the suggestion which the judge made about the furnishing of a statement of the firm’s property as an order, ■and committed the defendant, in form, until he should comply with that order. This is, at least, an infelicitous statement of the real ground of the commitment. But whether this inaccuracy should be deemed to be so far of the substance .of the order, where the substance of the thing intended is plain by the proceedings, as to require the reversal of the order on that ground alone, may well be doubted. But that can be no longer a controlling question; for that •order has been greatly modified, and, in important particu
It is clear that the finding that the defendant has within his power $10,000 of the firm’s funds is largely.arbitrary and conjectural, based mainly on inference and surmise. It is supported by no direct, positive proof. And, judging of the situation as disclosed, there seems to be a possibility that, the firm’s assets, if, indeed, any of the firm’s assets still remain, are within the power of others, and not subject to the-defendant’s power; amounting to a probability almost or quite as strong as that they are within the defendant’s power. The order of December 10,1895, should not have been made. It has no sufficient support in the evidence. The defendant had been in .jail more than a full year under the first order: He should have been released.
By the Court.— The orders are reversed, and the cause-remanded with direction to discharge the defendant.
A motion by the respondent to offset the judgment for costs in this court against the judgment of the circuit court entered December 11,1891, was granted May 21, 1896.