McGovern v. United States

• Decision Date: 24 January 1922
• Docket Number: 2924,2925.
• Parties: McGOVERN et al. v. UNITED STATES (two cases).
• Court: U.S. Court of Appeals — Seventh Circuit

280 F. 73

McGOVERN et al. v. UNITED STATES (two cases).

Nos. 2924, 2925.

United States Court of Appeals, Seventh Circuit.

January 24, 1922

Seymour Stedman, of Chicago, Ill., for plaintiffs in error.

C. W Middlekauff and Jacob I. Grossman, both of Chicago, Ill., for defendant in error.

Before BAKER, ALSCHULER, and EVANS, Circuit Judges.

EVAN A EVANS, Circuit Judge.

Two writs of error are here prosecuted to review judgments punishing plaintiffs in error for contempt of court. Though prosecuted separately, they were presented and argued together and will be disposed of in a single opinion.

John and William McGovern were convicted of contempt for violating two orders made in certain pending equity proceedings instituted under and by virtue of title 2, Sec. 22, of the National Prohibition Act (41 Stat. 314). Each was fined $1,000 and sentenced to imprisonment for one year in each contempt proceeding.

The first proceeding, known here as No. 2924, was instituted in the name of the United States and by the United States district attorney; the second suit, known here as No. 2925 was begun in the name of the United States by the Attorney General of the state of Illinois. Each suit was prosecuted separately, and the contempt proceedings were separately instituted and separately prosecuted to judgment.

Subsequent to the entry of the judgment in the contempt proceedings in the District Court, and prior to the hearing in this court, William McGovern died. As to him, therefore, the judgments abated, and the writs of error must be dismissed, in accordance with the practice announced in the case of Caesar Dal Pino v. U.S., 278 F. 479, recently decided by this court.

As to John McGovern, two judgments are outstanding, each imposing a fine of $1,000 and a prison sentence of one year. Examination of the pleadings, orders, subpoenas, etc., as they appear in the record, discloses that the equity suit wherein the contempt proceedings arose and here known as No. 2924 was first instituted (November 24, 1920). Upon the same day an order was made, abating the nuisance and restraining the defendants from 'selling, keeping, or bartering any intoxicating liquor' on the premises therein described. This order was served upon John McGovern December 3, 1920. The other equity suit instituted by the Attorney General of the state of Illinois, to abate the same nuisance and to restrain the same defendants from selling or disposing of liquor on the same described premises, was also filed November 24, 1920, but the injunctional order was signed November 26th.

Proceedings for the punishment of the defendant for contempt of court in No. 2924 were instituted on the 15th day of December, 1920, and hearing had on January 15, 1921. Contempt proceedings were begun in No. 2925 on the 11th day of January, 1921, and hearing had on the 15th day of the same month, immediately following the hearing in the contempt proceedings in No. 2924. The judgment was pronounced in No. 2924 first, and the trial in No. 2925 was then immediately begun.

The institution of the two similar proceedings was most unfortunate. The fact that in one suit counsel for the moving party was the United States district attorney, and in the other the Attorney General of the state of Illinois, does not change the character of the proceedings or the interest of the parties to the suit. In each equity proceeding the United States was the petitioner, and the plaintiffs in error the defendants. In each suit the relief sought was that designated by section 22 of the National Prohibition Act, the abatement of a nuisance maintained on the first or ground floor of the building located at 661 North Clark street. The evidence in each of the two contempt proceedings tried on January 15th was very similar. In fact, counsel on the second trial offered the evidence which the district attorney had a few minutes before offered in the contempt proceedings arising in No. 2924. The two judgments entered were similar.

Both contempt proceedings were, judged by the test applied in Lewinsohn v. U.S. (C.C.A.) 278 F. 421, criminal contempt proceedings. No reason is now urged by the government why the two judgments were entered, other than that plaintiff in error failed to plead the pendency of another suit.

While it may be the proper, and undoubtedly the better practice, to plead the pendency of other suits, if the facts warrant such a plea, it by no means follows that a court should, in the absence of such a plea in abatement,...