Livingston v. Swift , 23 How. Pr. 1 ( 1861 )

By the court,

Hogeboom, Justice.

I think Judge Wolford’s order discharging defendant, erroneous.

1. Whether the defendant was served with the injunction order in due form or not, by the exhibition of the original, is a disputed question of fact upon which the judge had a right to pass. But I think knowledge of the injunction, information of its contents, presence in court when it was made, would be fully sufiicient to impose upon the defendant the duty of obeying it, at least so far as the pecuniary rights of the relator are concerned. (Hull agt. Thomas, 3 Edw. Ch. Rep., 236; People ex rel. Morrison agt. Brewer, 4 Paige, 405; Stafford agt. Brown, 4 Paige, 360; People agt. Compton, 1 Duer, 563, overruling or questioning Coddington agt. Webb, 4 S. S. C. R., 639; People agt. Sturtevant, 5 Seld., 278.)

Whether, to make out a case of wilful and intentional disrespect to the process of the judge, so as to require him to punish for a criminal contempt of the dignity and authority of the court, the service should be by showing the original order, is not necessary to be considered. (1 Barb. Ch. Pr., 639; Code, § 302; Coddington agt. Webb, 4 S. S. C. R., 639; 3 Cl. Dig., 3106.)

The cases are entirely distinct as to the remedy and the nature and object of the punishment, where a party’s pecuniary rights have been affected or impaired. By a disobedience of the process or order of the court or officer, the court or judge has no discretion, but must impose a fine sufficient to indemnify the party. (2 R. S., 538; People agt. Compton, 1 Duer, 515.) Where the dignity of the court has been assailed and treated with contempt, the court or judge is the guardian of its own dignity, and sole judge both as to the facts of the offence and amount of fine or imprisonment (within the statutory limits) requisite to vindicate its honor and dignity. (Mitchell’s case, 12 Abb., 249: Reynolds agt. McElhone, 20 How., 454.) As the evidence established an unquestionable case of contempt to the prejudice of the relator to the amount of the property received in violation of the injunction, it was imperative to punish the party to that extent.

2. The order was plainly appealable by the relator. It affected a substantial right, to his prejudice. He was substantially a party to the proceeding, and the non-conviction for the contempt and non-imposition of a fine was a direct damage to him to the extent of the money clearly received.

3. As the nature and the amount of the punishment to be imposed was (beyond the limits which we have named) a matter of discretion with the officer, it is not perhaps appropriate that this court should attempt, on reversing this order, to make such order as the court below ought to have made, but leave the parties concerned to such future proceedings to vindicate and enforce their rights as they shall be advised.

The order of the county judge of Albany county should be reversed, with ten dollars costs to be paid by the respondent to the appellant, and without prejudice to the appellant to institute such further proceedings on account of the disobedience of the injunction order as he shall be advised.