Bradstreet Co. v. Bradstreet's Collection Bureau , 249 F. 958 ( 1918 )

LEARNED HAND, District Judge

(after stating the facts as above).

[1]

The defendant’s first point is that the order to show cause could be the basis only of a criminal contempt, and that therefore, under Gompers v. Bucks Stove Co., 221 U. S. 418, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874, it was irregular, because it did not state with sufficient distinctness what the contempt was, and because it was not served personally. We do not think that the contumacious acts relied upon weye insufficiently set forth, even for a criminal proceeding. The order to show cause was no more than process and prayer, and in the absence of any statutory regulation might be read along with the supporting affidavit. Assuming that, if the proceeding was criminal, personal service was necessary, such is not the casé when it is to punish for a civil contempt. Pitt v. Davison, 37 N. Y. 236. Now, this was in no case properly a criminal contempt, being brought in the suit, and by the plaintiff, and not in the name of the United States. Gompers v. Bucks Stove Co., supra. But it is urged that these were but formal irregularities, and that the purpose of the proceeding was clearly criminal. This is not true, in spite of the use of the inappropriate word, “punished.” It was open to the plaintiff under that language at least to recover a remedial fine, enforceable by execution, and such relief would be aptly enough described as a punishment. The opinion in Gompers v. Bucks Stove Co., supra, did not hold, as the defendant urges, that the proceeding there was criminal. On the contrary, it held that, not being such, no punitive order could properly be based upon it. None such could have followed this order to show cause, for the reasons there given. If the defendant had understood the law, it could never have been supposed that the proceeding could be criminal, whatever the prayer for relief might be, for it was either a civil proceeding or it was a nullity.

[2] We need not consider whether the plaintiff might have been embarrassed, if the defendant had defaulted, in obtaining more than a remedial fine under such a prayer. Perhaps it could not have made any use of the general prayer in that case. In fact, the defendant did not default, but entered an appearance to test the validity of the service. Had the service been in fact invalid, such a course would have involved it in no determination upon the merits; but the service was good, since the proceeding was civil, as we have said. The appearance was therefore either a nullity or it was a general appearance, though not intended as such. In either event, the defendant had de facto appeared before, the court, and was necessarily advised of any added relief which the plaintiff might claim under the facts. While the scope of the prayer might protect him, if he chooses to default, from any greater relief, that protection is at an end when, by presenting himself at the hearing, he has an opportunity to learn of the extent of the added relief which the plaintiff asks and the court considers. We think, therefore, that. Judge Hough was quite right, having the parties in fact before him, to disregard the limitation in the prayer, and proceed to such a determination as justice required.

[3] That the sign on the door and the name in the telephone directory did each constitute a violation of the injunction admits of no doubt. They represented the defendant’s business as connected with the plaintiff’s by the use of the name, “Bradstreet’s,” and they were each a specific instance of exactly that conduct which it was the purpose of the suit to prevent, and which the injunction forbade in general terms.

[4] The last question is whether the order was in fact a supplemental decree or a decree upon a contempt. It did no more than declare the continuance of the sign and the name in the directory to be a contempt. This it certainly was, and no decree could have done less. It left open to the plaintiff a further application, which, of course, was regular. We go further, and say that it was in the power of the court to enforce the abatement of such a continuing contempt civilly by an attachment against the officers of the defendant until they should remove the sign and the name. Such an affirmative act would effect a compliance pro tanto with the decree.

Order affirmed, with costs.