Grand Lodge Knights v. Jansen

The opinion of the court was delivered by Dixon, J.

This appeal is taken from an order in chancery made December 6th, 1899, adjudging the appellants to be in contempt for *740 disobeying a restraining- order dated December 8tlr, 1894, and an injunction dated February 12th, 1895, the object of which was to secure control of certain moneys that had belonged to-the Germania Lodge, but were claimed by the bill filed in December, 1894, to belong then to the complainant, the Grand Lodge Knights of Pythias of New Jersey. The order appealed from directed that for their contempt the appellants should each pay to the clerk of the court for the use of the state a fine of $5, and that they should pay to the complainant the sum of $715, with interest thereon from December 8th, 1894, being the balance due the complainant on the final decree in the cause, and also the costs of the suit and of the contempt proceedings, and further directed that the appellants should be committed to-the common jail, of Essex county until' they complied with the order.

This order has a twofold character. It aims to punish the appellants for conduct derogatory to the dignity of the court, and also to afford the complainant an additional remedy by the imprisonment of the appellants until they pay the sum due.

As a mere punishment for contemptuous conduct, the- order being within the jurisdictioir of the court of chancery is not appealable, but so far as it is for the relief of the suitor, it is subject to appeal. Dodd v. Una, 13 Stew. Eq. 672; Thompson v. Pennsylvania Railroad Co., 3 Dick. Ch. Rep. 105; S. C., 4 Dick. Ch. Rep. 318; Forrest v. Price, 7 Dick. Ch. Rep. 16; S. C., 8 Dick. Ch. Rep. 693. Therefore, so much of the order as requires the appellants to pay a fine and be committed until payment, is beyond our review.

Of the remedial part of the order, the direction to pajr the sum due to the complainant is merely a re-affirmation of the final decree, and so cannot now be deemed a grievance; consequently, only respecting the order for imprisonment until the debt and costs are paid are the appellants entitled to be heard. Since the sole purpose of the imprisonment is to obtain payment for the complainant, the court should consider whether the imprisonment is likely to secure that result. To this end, the financial ability of the appellants is a proper subject of inquiry, *741 for if they have not the means wherewith to pay, the imprisonment can surely afford no remedy.

Before this order for imprisonment was made each of the appellants presented to the court his affidavit, stating that he was a working man, dependent on his weekly wages for the support of himself and his family, and had no money, funds or property with which to pay the decree or any part thereof. There was no denial of these affidavits, and the inability of the appellants to pay the debt is substantially conceded.

The import of these affidavits was disregarded in the court below because they were ex parte and the affiants had not been •cross-examined on the subject. But that arose from the fact that the complainant, in prosecuting the order for contempt, had chosen to produce its proofs in the same manner—by the service •of affidavits—a practice sanctioned by the rules of the court. If the complainant had desired to deny these averments of poverty •or to cast doubt upon them by cross-examination, an opportunity to do so should have been secured before the hearing. When presented at the hearing, in accordance with the practice of the court, they could not rightfully be ignored.

It is urged, also, that the inability of the appellants to comply-with the decree ivas not a proper subject for consideration until .after the remedial order had been made. Such is not the law.

In Thompson v. Pennsylvania Railroad Co., 4 Dick. Ch. Rep. 318, Mr. Justice Van Syckel, speaking for this court, said that the eases recognized the propriety of discharging the defendant from the consequences of his apparent contempt if he can show his inability to comply with the order of the court, and in Walton v. Walton, 9 Dick. Ch. Rep. 607, Vice-Chancellor Grey held the rule to be that any facts existing when the application to hold for contempt is made, which would support a motion to enlarge from custody, ought to be shown in answer to the application to hold the defendant in contempt. We consider such a practice commendable from every point of view.

Our conclusion is that the imprisonment of these appellants was not adapted to secure the payment of the complainant’s •claims, and therefore could not justly be deemed an equitable remedy therefor. To that extent the order is reversed.

*742 For reversal — The Chancellor, Chiee-Justice, ' Van Syckel, Dison, Collins, Fort, Garretson, Bogert, Krueger, Hendrickson, Adams, Vredenburgh, Voori-iees—13. For affirmance—None.