Meyers v. Trimble , 3 E.D. Smith 607 ( 1855 )

By the Court.

Woodbuff, J.

The order appealed from herein is not submitted with the papers on this appeal, but only a certificate by one of the Judges at Special Term, that the questions arising on the motion there, are of sufficient importance and doubt to render a review by the General Term proper.

It is, however, stated in the points submitted by the respondent, that the order in question was made under the following circumstances and is of the purport following. The plaintiff having brought his action upon a promissory note, the defendants by their answer allege a counter claim by way off set off to a part of the plaintiff’s demand, and admit the residue. Thereupon an order was made, directing the defendants to satisfy that part of the plaintiff’s claim which was so admitted in. pursuance of section 244 of the Code.

This order being served, the defendants refused to comply therewith, and upon a motion for an attachment for the disobedience of that order, a further order was made that an attachment issue to bring the defendants into court to answer for their apparent contempt in disobeying the former order.

Erom the order that an attachment issue (as stated in the respondent’s points) the present appeal is taken.

ISTo points are submitted by the appellant, and we are not therefore apprised of the grounds of his objection to the order. All that appeared before the court, when the order appealed from was made, was that the order for the payment of the sum admitted to be due, was served upon each of the defendants personally, and that they refused to obey it. BTo excuse was offered for such disobedience; the propriety of the original order is not open to question on this appeal; and the only question that occurs to me is this: Did the legislature, when they provided that such an order might be enforced by the court as it enforces a provisional remedy, mean that the court might issue an attachment against the persons of the defendants, and require them to answer for the apparent contempt, and if upon such appearance the apparent contempt was neither disproved nor excused, may the court proceed to fine and imprison as in other cases of contempt ?

I have heretofore in Merritt v. Thompson,^* in this court, at the January General Term, (1855) and in a recent case at the April Special Term, Quintard v. Secor,^† expressed my view at some length regarding the consistency of the power given to the court by the section of the Code under consideration, with our statutes abolishing imprisonment for debt. Although if we were impelled by our views of the proper construction of this section to say that it provides for the imprisonment of a debtor, who, admitting that he owes money, is in fact unable to pay it, we should be bound to add that the legislature who had abolished imprisonment for debt, were entirely competent to restore it, in such cases, and with such limitations and qualifications as they thought proper; yet, on the other hand, we ought to give a construction to the section in harmony with the general course of legislation in this state for more than thirty years, and with the spirit which still characterizes our laws, and especially with a cautious regard for the liberty of the citizen, if such construction will satisfy the requirements of the section under consideration. And in this view I have suggested in the above cases, that if it appear that t-he debtor is unable to pay the sum ordered to be paid, that may be deemed a sufficient excuse when he appears to answer for apparent contumacy.

Courts will not adjudge a defendant in contempt for not doing an impossibility, nor for not doing what it is not in his power to. do, unless he has voluntarily disabled himself to do the act, and the creation of the disability was itself a contumacious act. There is therefore nothing in the objection that the order appealed from is in conflict with our non-imprisonment laws, or the general design of the legislature to protect an honest but insolvent debtor from being restrained of his personal liberty.

The question, however, still remains whether by the terms “ may enforce the order as the court enforces a provisional remedy” was meant that the court might punish disobedience as a contempt. There appears to me no room to give it any other meaning.

How do the courts enforce a “ provisional remedy ?” Under the Code, provisional remedies are described in five chapters. 1st. “ Arrest and Bail.” This remedy when granted, enforces itself as against the defendant. The very order of arrest goes into the hands of a ministerial officer for immediate execution. It requires no supplemental proceedings to enforce it, unless the sheriff refuses to return the writ or mandate, and if he do, he may clearly be ordered to make such return and be attached for a contempt in disobeying the order. 2d. “ Claim and Delivery.” To this the same remark in substance applies, and an attachment may be granted to compel the sheriff to perform his duty. 3d. “Injunction.” In respect to which the appropriate mode of compelling obedience is by attachment for a contempt in disregarding it. 4th. “Attachment” against; property of foreign corporations, non-resident or absconding-debtors. The remarks made regarding arrest and bail, are op-. plicable to this also. The execution of the attachment by the-sheriff enforces this remedy, unless the sheriff by some neglect of his own duty, subjects himself to a proceeding for contempt. 5th. “ Appointment of Receivers.” “ Power to order the delivery of money or property in the defendant’s possession, to the party claiming it, or to bring it into court,” in respect to both of which the power of the court to enforce its order by process for a contempt, is unquestionable, and in respect to the ■order for the delivery of property, the terms are explicit that the court may not only punish disobedience as a contempt, but may direct the sheriff to take the money or property, and deposit or deliver it in conformity with the original direction.

How, in respect to all these remedies, the well-known power-of the court to punish a disobedience of its orders as a contempt, is an important mode of making them effectual, and in some of them the remedy itself would be wholly ineffectual and inoperative without, such power, and this power is fully given and regulated by the Revised -Statutes, and is preserved in force by section 411 of the Code.

I do not therefore hesitate in concluding that the language ■above referred to., means that the court may compel obedience to its order in the mode pursued in the present case. Indeed, had the provision in question stopped with a warrant to the ■court to .order the defendant to satisfy the part of the claim .-admitted, and -had not prescribed the mode of enforcing obedience, it would -have been no idle claim that the provisions -of the Revised Statutes (2 Rev. Stats., 534 and 536, § 1 and § 4, § 5 and onward) would have been distinctly applicable to a case of disobedience to such an order. On the contrary, the remedy by precept or attachment for a contempt would seem not only authorized, but in all respects appropriate.

In my opinion the order should be affirmed.

Order affirmed.

* Ante, 223.

† Ante, 393.