Fleming v. Warshawsky & Co., 7600.

• Decision Date: 27 November 1941
• Docket Number: No. 7600.,7600.
• Citation: 123 F.2d 622
• Parties: FLEMING, Administrator of the Wage and Hour Division, United States Department of Labor, v. WARSHAWSKY & CO.
• Court: U.S. Court of Appeals — Seventh Circuit

123 F.2d 622 (1941)

FLEMING, Administrator of the Wage and Hour Division, United States Department of Labor, v. WARSHAWSKY & CO.

No. 7600.

Circuit Court of Appeals, Seventh Circuit.

November 27, 1941.

COPYRIGHT MATERIAL OMITTED

Gerard D. Reilly and Irving J. Levy, U. S. Dept. of Labor, both of Washington, D. C., and Alex Elson, Lee K. Beznor, and Sidney A. Jones, Jr., all of Chicago, Ill. (Edward Jay Fruchtman, of Washington, D. C., of counsel), for appellant.

Philip R. Toomin, of Chicago, Ill., for appellees.

Before MAJOR and KERNER, Circuit Judges, and LINDLEY, District Judge.

MAJOR, Circuit Judge.

This is an appeal from an order, entered November 22, 1940, dismissing plaintiff's application in a contempt proceeding. The application was predicated upon defendants' failure to pay restitution to their employees as was required by a consent judgment, entered July 15, 1940, pursuant to Section 17 of the Fair Labor Standards Act. Act of June 25, 1938, 29 U.S.C.A. § 201 et seq.

On July 15, 1940, plaintiff filed a complaint against the corporate defendant and certain of its officers, alleging that they were engaged in the production, selling and distribution of merchandise in interstate commerce and that they had violated numerous provisions of the Act. A judgment was sought enjoining them from further violations. On the same date, plaintiff and the defendants entered into a stipulation by which the defendants consented to the entry of a judgment. The stipulation provided that defendants would pay to each of their employees a sum of money equal to the difference between the amount of wages actually paid since the effective date of the Act, and the amount required to be paid by Sections 6 and 7, 29 U.S.C.A. §§ 206, 207. It was further stipulated that such payments were to be made as follows: One-ninth of such sums in 30 days and the balance in eight equal monthly installments. The judgment of July 15, 1940, in addition to enjoining defendants from further violations of the Act, provided:

"Further Ordered, Adjudged, and Decreed that the stipulation made this day between the parties hereto and filed herein be, and it hereby is incorporated in and made a part of this judgment, and that defendant do and perform each and every act and thing set forth in the said stipulation; * * *".

On October 8, 1940, plaintiff filed an application for an order requiring the defendants to appear and show cause why they should not be adjudged in contempt of court for failure to abide by the judgment. The application, among other things, alleged that the plaintiff had prepared or approved a schedule of payments, consented to by defendants, to be made by the defendants to their employees, and that defendants had failed to make restitution in accordance with the judgment. Upon an order directing the defendants to show cause, the corporate defendant and certain of its officers filed a joint answer which admitted the entry of the consent judgment; that defendants had knowledge of the contents thereof and admitted the stipulation pursuant to which they were to make restitution to their employees. The answer denied that defendants had refused to make the payments required by the consent judgment and averred "* * * that without solicitation or other effort on their part, or anyone authorized by them in that behalf, certain employees on said list holding claims amounting in the aggregate to the sum of $506.59, voluntarily and without coercion, relinquished their said claims." The defendants' answer also asserted: (1) that the plaintiff was without power to institute contempt proceedings, (2) that the restitution order constituted merely an unpaid money judgment and that contempt proceedings were improper to enforce such a judgment, and (3) that the judgment "is too vague and indefinite" in failing to state the names of employees entitled to back wages and the amounts due each of them.

A hearing was had before the District Court which made findings of fact, conclusions of law, and entered the order appealed from. The court concluded: (1) that the judgment entered July 15, 1940, was void or unenforceable for uncertainty, (2) that if the judgment was valid, a proceeding by contempt was not proper, but that the judgment should be enforced by means of an execution at law, (3) that the employees were the beneficiaries of a money award and that they had the legal right, in the absence of coercion or fraud on the part of the defendants, to decline the benefit of such award, and that the defendants had the legal right to rely upon the waiver by said employees of the award due them, and (4) that even though the proceeding by contempt was proper, the injunctional order entered July 15 had not been violated.

The conclusions of the court are here assailed largely on the grounds that they are predicated upon an erroneous construction of the Act. We shall discuss them in order. Inasmuch as our decision must turn largely, if not entirely, upon matters of law, we deem it unnecessary to state the facts except as they are relevant thereto.

Section 17 of the Act, 29 U.S.C. A. § 217, confers upon the District Courts of the United States jurisdiction to restrain violations of the Act. It, therefore, when it entered its judgment of July 15, 1940, had jurisdiction of the subject matter and the parties. It is argued by the defendants that the judgment is uncertain because of its failure to incorporate the names of the employees who were entitled to restitution, together with the amount which defendants were obligated to pay each of them. We are of the opinion that this position is not tenable for two reasons: (1) the judgment was entered with the consent of the defendants, and was not subject to attack for uncertainty in the manner attempted, and (2) the order was sufficiently certain, under the circumstances, to fully apprise the defendants of their obligation. It seems to be firmly established that the judgment of a court, having jurisdiction over the subject matter and the parties, may not be challenged or set aside in a collateral proceeding. Swift & Co. v. United States, 276 U.S. 311, 48 S.Ct. 311, 72 L.Ed. 587. Consent to the issuance of a decree by a court having jurisdiction over the subject matter and the parties is an effective waiver of any errors committed in the issuance thereof. Securities & Exchange Commission v. Jones, 2 Cir., 85 F.2d 17; Curry v. Curry et al., 65 App.D.C. 47, 79 F. 2d 172; O'Hearne v. United States, 62 App. D.C. 285, 66 F.2d 933, 935.

Furthermore, we think that the judgment was certain so far as the defendants were concerned. Shortly after its entry, there was prepared a schedule, approved by the defendants, which contained the names of the employees and the amount to be paid each of them. In the absence of such a schedule, the...