White v. Wadhams

211 Mich. 658 | Mich. | 1920

Brooke, J.

(after stating the facts). 1. It is first urged on behalf of the defendants that the decree is erroneous in holding these defendants guilty of contempt. After a careful reading of the record, we are satisfied that the conclusion reached by the trial judge as to the defendants Frederick N. Wadhams and Ida E. Wadhams, his sister, is fully warranted. Both of these defendants knew that the fund deposited in the Hastings City Bank, which was represented by the certificate of deposit for $950, constituted the partnership assets in which plaintiff was interested with the defendant Frederick N. Wadhams.

It is strenuously insisted on behalf of defendant Frederick N. Wadhams that he should not be held guilty of contempt because the testimony tends to show (contrary to the finding of the trial court) that the certificate of deposit, which was taken in his individual name, was by him transferred to his sister, defendant Ida, some few days prior to the service of the injunction and that the injunction therefore could not enjoin him from doing what he had already done, in transferring the partnership assets to his sister.

As to the defendant Ida E. Wadhams, it is claimed that she got possession of the certificate through a bona fide purchase from her brother prior to the service of the injunction, and, therefore, that she could not thereafter be; charged with breach of the injunction in converting the same to her own use. This, we think, is a view of the situation entirely too narrow. At the time of the service of the injunction upon the bank and upon the defendant Frederick N. Wadhams the money was in the bank and the bank’s indebtedness on the deposit was represented by the certificate. Personal service of the injunction was made upon defendant Frederick N. and defendant Ida knew of such service and undoubtedly knew that the injunction was directed to the conservation of this specific fund. Defendant Frederick testified as follows:

“Q. And she, of course, knew that this suit had been started?

“A. Yes.

“Q. Knew that we had got out an injunction, served it on you?

“A. Yes, sir.

“Q. She was there when the injunction was served, wasn’t she?

“A. I think so.

“Q. You read it over to'her, didn’t you?

“A. No, sir.

“Q. Did she read it?

A. No, I think not.

“Q. But she knew that an injunction had been served on you?

“A. I think she did.

“Q. And that it related to this money that you deposited in the Hastings City Bank, didn’t she?

“A. The injunction?

“Q. Yes, of course.

“A. Yes; I think so.

“Q. She took it and had it after she knew that this injunction applied to that property?

“A. Yes, sir.”

It is, we think, quite clear that these two defendants, brother and sister, deliberately violated the spirit and letter of the injunction and, in so doing, were guilty of a flagrant contempt of court.

As to the defendant Clara E. Straith a different situation is presented. When the $950 certificate of deposit was cashed by Ida E. Wadhams, she requested a new certificate of deposit for $700, to be made out in the name of her sister, Clara. This was done and Clara retained possession of it for a few days, when she indorsed it, caused it to be cashed, and the cash ■turned over to defendant Ida. The record is barren of testimony tending to show that Clara even knew of the existence of the injunction, and at all events, there is no claim that she ever received the beneficial use of a penny of the fund. She was its custodian for but a few days, when it found its way back into the hands of defendant Ida. Under these circumstances, we think the court was in error in holding Clara to be guilty of a contempt respecting the order of which she is not shown to have had any knowledge.

2. It is next claimed that that portion of the decree awarding to plaintiff the sum of $800 “under 3 Comp. Laws 1915, § 12288, which sum the court finds to be the actual loss and injury suffered by the plaintiff” is erroneous. The testimony upon which the court made this award is that of Mr. Swarthout, plaintiff’s attorney, and is made up of several items. The first is the sum of $480 for services in prosecuting the claim originally and in an effort to prevent the State Savings Bank from collecting upon the certificate of deposit, which it bought from Ida E. Wadhams. The position of the plaintiff in that controversy was held by this court to be untenable (204 Mich. 381), and we can see no propriety in compelling defendants to pay plaintiff’s attorney compensation for his misdirected efforts.

The next item is $165 for 11 days’- labor in the preparation of the supplemental bill. It is urged by counsel for defendant that this sum likewise should be denied plaintiff because the Supreme Court held (in 206 Michigan) that the amended bill was improvidently filed, leave of this court not having been first obtained. Inasmuch, however, as this court ultimately permitted the filing of the bill, we are of the opinion that this sum may properly'be allowed.

For service of subpoenas on the supplemental bill and the transcription of certain testimony, $9.70. This, it seems to us, is a proper expense.

For costs taxed against plaintiff in the Supreme Court, $108.55, and in the circuit court, $41.50. These costs were allowed to defendants by this court and clearly should not now be repaid to plaintiff by defendants.

The allowance under this head by the circuit, judge is reduced from $300 to $174.70.

3. It is said that defendants Clara E. Straith and Ida E. Wadhams should not be held liable for the original balance due on the accounting. As to defendant Clara E. Straith, we believe this claim is well founded, because, as heretofore pointed out, she received the beneficial use of no part of the fund and is not shown to have had any knowledge of the injunction. The contrary is true of defendant Ida E. Wad-hams. She had full knowledge of the injunction and its purport and nearly a year after its service, cashed the certificate of deposit representing the trust fund .and converted the money to the use of herself and defendant Frederick N. Wadhams.

4. It is urged that the jail sentence provided in the •decree is erroneous and is prohibited by the Constitution, article 2, § 20. The cases of City of Eaton Rapids v. Horner, 126 Mich. 52, and Mast v. Washtenaw Circuit Judge, 154 Mich. 485, are cited and relied upon in this connection. We are of the opinion that the case at bar is controlled by Chapel v. Hull, 60 Mich. 167, and Carnahan v. Carnahan, 143 Mich. 390 (8 Ann. Cas. 53). Here, as there, the injunction was directed at a specific fund, the partnership funds then on deposit in the Hastings City Bank. The defendants, in flagrant disobedience of the injunction, converted this specific fund to their use and, under the authorities cited, are guilty of a gross contempt.

As modified by this opinion, the decree of the lower court will be affirmed against the defendants Frederick N. Wadhams and Ida E. Wadhams, with costs. The bill will be dismissed as to defendant Clara E. Straith and she will recover her costs against the plaintiff.

Moore, C. J., and Steere, Fellows, Stone, Clark, Bird and Sharpe, JJ., concurred.