Myers v. Janes , 3 Abb. Pr. 301 ( 1856 )

Emott, J.

The return to this writ of habeas corpus shows that the prisoner is in the custody of the sheriff", under process issued by the county judge of Dutchess county upon a final adjudication made by him that the defendant had been guilty of a contempt in disobeying an order in a supplementary proceeding under chapter 2 of title 9 of the Code. The return alleges a legal ground for the detention ; but the prisoner has put in an answer alleging that certain facts are not properly stated in the return, and that certain allegations then made are untrue. The conclusion which it is sought to establish on the part of the petitioner is that the officer by whom the final adjudication of contempt was made, and by whom the process was issued, had not at the time jurisdiction to make such an order or issue the warrant. This is the only ground upon which the return can be impeached or of the proceedings inquired into. If this allegation is made out, the prisoner must be discharged.

It is not denied but that the county judge had jurisdiction of the subject matter of the proceedings in the course of which the alleged contempt was committed, nor is it denied that at the commencement of the examination, the officer had properly acquired jurisdiction of the person of the petitioner. The fact which the petitioner seeks to make out is that the jurisdiction was subsequently lost.

First it is said that in the course of these supplementary proceedings an adjournment was made by the officer, with the consent of the parties, to July 14. No hoiir of the day'is specified to have been fixed for this adjourned hearing; and on the 14th, Judge Nelson was absent from the city until after six o’clock in the evening, and then it is said the original proceedings fell to the ground, and the judge lost jurisdiction of the petitioner, and of the case, so that he could not afterwards make any order to punish him for a contempt previously committed by a violation of the order by which the proceedings were instituted.

Without stopping to consider 'whether this would be so, I think there is not enough in the proofs before me to establish this state of facts contended for.

The attorneys for the respective parties are directly in con- ■ flict in their recollections of what transpired on Saturday the 12th of-July. This conflict it would be difficult for me to decide were it not for what is stated by Judge Nelson. In addition to his statement that to the best of his recollection no adjournment was had, and nothing left to be afterwards done, except merely to supply .the want of formal proof of the amount due on the plaintiff’s judgment, he also states that he had decided the question of the alleged contempt for which Janes was then brought in on the order to show cause on that day (the 12th), and had announced his decision. He also says that the other violation of the order of examination was discovered on the debtor’s examination on that day, but that no commitment was then made, nor any further steps then taken to punish the contempt, because the affidavits and proofs did not accurately disclose the amount due on the judgment. Whether the matter was then finally decided or any adjudication made, or whether the proof was closed, or whether it was adjourned to the 14th for further hearing and more proofs, must depend upon the return, and therefore must mainly be determined by the recollection of the officer holding the examination.

An adjournment, if any took place, was his act, and not that of the parties, nor could it ever have been made by their agreement alone. In the direct conflict of the testimony of the counsel engaged therefore, I can see no other course than to rely upon the return and recollection of the county judge, and as he states positively that he had arrived at a decision as to the first contempt, and that no offer of any further evidence or explanation by the defendant on any point in the case was made to or entertained by him, I am satisfied that no adjournment was intended or made by the county judge on July 12, ■ and therefore cannot hold that he then lost jurisdiction of the matter.

After this an order was made by Judge Nelson for the defendant to show cause before him why he should not be punished for two contempts committed by violations of his order of examination. This order was returnable at the office of the comity judge on July 24, at 12 M. On that day the judge was occupied holding a court of sessions at the court house until after one o’clock. The defendant did not appear before him at the court house nor at his office after he went there, and he was thereupon adjudged to have committed contempts in the points specified in the order to show cause, and on that determination the warrant was issued by which he is now held.

It is contended that as the county judge was not at his law-office in Market-street at 12 M. of this day or between that and 1 P. M., he lost his jurisdiction, and could not make such an order or issue such a warrant as this. It is at least doubtful whether Janes was not bound to present himself at the hour specified, before the county judge at the court house. The order to show cause did not specify an office at any particular place except in the city of Poughkeepsie, and it would not be an unreasonable construction to hold that the court-room is as much the office of the county judge, when he is engaged there in the public business, as his private law-office.

But whether this be so or not, the whole question is one of regularity merely, and not of jurisdiction. The jurisdiction of the officer was not acquired by, and did not depend upon, the service or return of the order to show cause. The defendant was regularly before him on an order made in proceedings supplementary to execution which were still pending. In the course of these proceedings he had the right to punish the defendant for any contempt or violation of his lawful order which he had committed. The return shows that he did so, and on the return all the proceedings to punish this contempt appear regular. If the adjudication that the defendant had committed a contempt was made a few minutes after the hour or not at the precise place set for the defendant to show cause why he should not be punished for the alleged contempt, that may have been irregular, but it does not affect the jurisdiction of the officer, because that did not depend upon the order to show cause, and therefore the return cannot be impeached or questioned as to the proceedings on July 24 on this particular.

The return shows an adjudication and process of a competent officer having jurisdiction of the subject matter and of the person of the defendant, and that is all that I am allowed to inquire into in these proceedings.

The prisoner must be remanded.