Adam's Rib, Inc., In re

• Decision Date: 28 June 1968
• Citation: 39 Wis.2d 741,159 N.W.2d 643
• Parties: In re Voluntary Assignment of ADAM'S RIB, INC., a Wis. corporation. Harry W. KAMINSKY, Appellant, v. MILWAUKEE ACCEPTANCE CORPORATION and David F. Kopplin, Receiver, Respondents.
• Court: Wisconsin Supreme Court

Page 643

159 N.W.2d 643

39 Wis.2d 741

In re Voluntary Assignment of ADAM'S RIB, INC., a Wis. corporation.

Harry W. KAMINSKY, Appellant, v. MILWAUKEE ACCEPTANCE CORPORATION and David F. Kopplin, Receiver, Respondents.

Supreme Court of Wisconsin.

June 28, 1968.

Rehearing Denied Sept. 9, 1968.

Mr. Kaminsky appeals, as set forth above.

George E. Frederick, Milwaukee, for appellant; William P. McGovern, Milwaukee, of counsel.

Glassner, Clancy & Glassner, Milwaukee, for Milwaukee Acceptance Corp.

Robert F. Cavanaugh, Milwaukee, for Kopplin.

BEILFUSS, Justice.

We deem the controlling issues to be:

1. Is the evidence sufficient to sustain the trial court's belief that the appellant could produce the records sought?

2. Is this case a proper case for the invocation of sec. 295.02, Stats., providing for summary punishment?

Mr. Kaminsky's defense before the circuit court consisted of an absolute denial of possession of the records sought and denial of knowledge of their whereabouts. He argues on appeal, therefore, that he is being compelled to do something which is not within his power to do

Appellant is correct in his assertion that it is essential in contempt cases that the thing ordered to be done be within the power of the person. See 17 C.J.S. Contempt § 19, p. 48. However, in the particular case whether or not the thing ordered is within the capability of the person so ordered is a question of fact for the trial court to be decided upon evidence presented as in any other case.

'The power to punish for contempt is to be used but sparingly. It should not be used arbitrarily, capriciously, or oppressively. State ex rel. Schmidt v. Gehrz, 178 Wis. 130, 189 N.W. 461. But it is also the law that this court will 'not reverse a proper order in such a case except in a plain instance of mistake or abuse of power.' Warren v. Rosenberg, 94 Wis. 523, 69 N.W. 339. As a general rule, 'a reviewing court in contempt proceedings will not consider pure questions of fact.' And 'although it has been held that the findings of the lower court in contempt proceedings are not conclusive on appeal,' the 'appellate court will give the same force to the trial court's findings in cases of contempt as in other cases where there is a conflict in the evidence, and where there is evidence tending to show the guilt of the defendant a finding of guilty will not be reviewed.' Rubin v. State, 192 Wis. 1, 211 N.W. 926.' State v. Meese (1930), 200 Wis. 454, 458--459, 225 N.W. 746, 748, 229 N.W. 31.

The standard of review of a trial court's findings in the ordinary case where trial is not before a jury is as follows:

'Since the trial court tried the case without a jury, its findings will not be upset on appeal unless they are contrary to the great weight and clear preponderence of the evidence and it is not necessary the evidence in support of the findings constitutes the great weight or clear preponderance of the evidence. Nor is it sufficient that there is evidence to support a contrary finding. To command a reversal, such evidence although sufficient to support a verdict must constitute the great weight and the clear preponderance of the evidence. (Cases cited.)' Mitchell v. Western Casualty & Surety Co. (1966), 30 Wis.2d 419, 421, 141 N.W.2d 212, 213.

From our review of the record it is our conclusion the trial court's findings are not unsupported and are not against the great weight and clear preponderance of the evidence. It is clear that Mrs. Kaminsky, appellant's wife, delivered the records to the appellant. He does not deny that he received the records from her. Furthermore, the fact that he delivered some of the records is conclusive of the fact that he had possession of those that he delivered and would be the proper basis for an inference that he had or should know the whereabouts of the remainder.

The appellant here has failed to comply with an order of the court. The court simply did not believe the appellant's testimony that he cannot comply. This is not a case where the party urging contempt must prove a violation of a general order of the court, but is a refusal to comply with a direct specific order of the court. The burden was not upon the respondents to prove the appellant could comply with the order of the court. It was, at this point in the proceeding, incumbent upon the appellant to offer some satisfactory explanation of his failure to comply with the court's specific and direct order. Appellant offered nothing other than his own denial to show he did not have possession of the records and a statement that others had used the records at various times. No satisfactory explanation was offered as to where the records might be. It is incredible that important items essential to reconstruction of the business of Adam's Rib for the period concerned would vanish without explanation. The trial court could find that it is highly probable that the appellant has the records concerned, or at least knowledge of their whereabouts. This is sufficient to compel the production or satisfactory explanation of their disappearance.

'It was certainly within the province of the trial court to find upon the showing made by the respondent that she had not made a bona fide effort to comply with the order of the court to produce the children. It is also apparent from the record that the respondent had no intention to do more than what would amount to an excuse for her failure to comply with the order of the court. It is highly improbable that the respondent does not know the whereabouts of her sister and children unless she remains wilfully ignorant in regard to their whereabouts. There is, as the trial court found, reason to believe that if respondent had made a genuine, bona fide effort to produce the children, they would be produced * * *.' Dovi v. House (1944), 245 Wis. 59, 66--67, 13 N.W.2d 590, 593.

There is no showing that Mr. Kaminsky has made any bona fide attempt to comply with the court's order.

The appellant contends that there is no clear, convincing and direct proof that he had the records and, citing Warren v. Rosenberg (1896), 94 Wis. 523, 69 N.W. 339, argues the court cannot find him in ontempt unless there is such proof. In this case the trial court stated:

"He has already stated he didn't know where the property was, or what became of it. In fact, he is absolutely ignorant of the entire transaction. It is no use prolonging this thing. He has not complied in giving the statement called for, nor the statement in regard to goods sold to his brother; and I will say here you can draw your order committing him for comtempt for refusing to comply with the order of the court. Cut this thing short just where it is." P. 525, 69 N.W. p. 340.

Later, the defendant appeared applying for discharge with a new statement claiming it was as full and complete as was within his power to make. The trial court denied discharge finding the new statement unsatisfactory. Additionally, the court made a finding that defendant had $10,000 in money realized from the merchandise involved and added to the order that defendant was required to turn this sum over to the receiver.

This court on appeal held that so far as the order of the trial court committing 'the defendant until he should make full and truthful discovery of the property of his firm would not be so clear an abuse of the power of the court as would require its reversal by this court.'

However, this court further states that the part of the order imprisoning the defendant until he paid the $10,000 was not within the power of the trial court. The court states that there must be direct, clear and convincing evidence that the defendant actually had the money before such a severe remedy could be invoked and that it was insufficient to draw the inference from the fact that the defendant's firm had a large amount of property two years before the proceeding.

The appellant herein seizes upon the language in the case as authority that there must be direct, clear and convincing proof presented that he did have the records before his denial of possession is overcome. The case does not profess such a proposition. This court clearly emphasizes the fatality of the commitment order was due to the fact that it called for the payment of money. The court feared that to permit imprisonment until payment of money without direct, clear and convincing evidence the debtor was able to pay would be a return to the practice of imprisonment for debt. The court states, at pp. 529, 530, 69 N.W. p. 341:

'It was not the design of section 3029 to revive the power and practice of imprisonment for debt. That absurdity has long since been relegated, by the advance of civilization and the melioration of the rigors of ancient remedies, to the limbo of the obsolete barbarisms of the law. * * * No man can be imprisoned for mere inability to pay his contract debts, nor for failing to pay over to a receiver money which he does not have. Nor should there be involved in the modern administration of jurisprudence any considerable peril of such consequences. A commitment for failure to pay over money ordered to be paid should never be made unless the evidence shows clearly and satisfactorily that the party has the money within his power, and so has the present ability to comply with the order.'

There is no such consideration present in the instant case. The...