Alfred v. Alfred

• Decision Date: 09 May 1914
• Citation: 90 A. 580,87 Vt. 542
• Parties: ALFRED v. ALFRED et al.
• Court: Vermont Supreme Court

90 A. 580

87 Vt. 542

ALFRED

v. ALFRED et al.

Supreme Court of Vermont. Franklin.

May 9, 1914.

Original proceeding by John B. Alfred against Susan B. Alfred and another to punish defendants for contempt. Heard on the pleadings and the master's report. Petition dismissed.

Argued before POWERS, C. J., and MUNSON, WATSON, HASELTON, and TAYLOR, JJ.

C. G. Austin & Sons, of St. Albans, for petitioner. Elmer Johnson, of St Albans, for petitionees.

POWERS, C. J. The petitioner charges that the defendants are guilty of contempt of this court, on account of having sold and disposed of certain personal property involved in Alfred v. Alfred, 86 Vt. 500, 86 Atl. 749. A special master was appointed herein, who has heard the evidence and reported the facts upon which we are now to give judgment. The original suit was begun October 27, 1911, and involved the rights of the parties in and to the so-called Lavender Farm, and the personal property thereon, which consisted of horses, cows, farming tools and machinery, produce, and other personal property. When that case was before the special master, evidence was given regarding this personal property, but, when the report came in, the findings regarding it were so meager that the court of chancery declined to make any decree covering the same, though the orator therein insisted that he was entitled to a decree on the personal property. Accordingly a decree was rendered establishing the orator's rights in the farm and the rents, issues, and products thereof only. This decree was appealed from by the defendants, but not by the orator. So, when the cause reached us, we had nothing to do with the personal property, other than the rents, issues, and products of the farm; for we were sitting in review only, to correct errors in the decree pointed out by the defendants. Beyond this, our duty did not carry us.

There had been no preliminary injunction in that suit, but the decree appealed from contained a provision restraining the defendants from interfering with the orator in his possession, control, and management of the farm, and from receiving or controlling any of the rents, issues, and products thereof. This decree was filed in the court of chancery November 26, 1912, and the defendants' motion for an appeal therefrom was filed three days later.

The court of chancery, doubtless, could have made a valid order enjoining the defendants from using or disposing of the rents and products during the pendency of the appeal, either by virtue of its inherent powers (Merrimack River Sav. Bank v. Clay Center, 219 U. S. 527, 31 Sup. Ct. 295, 55 L. Ed. 320), or under the provisions of P. S. 1308. And, no doubt, this court could have made such an order under P. S. 1310. But nothing of the kind was done. The motion effected the appeal, and transferred the cause to this court. Lafountain v. Wilder, 86 Vt. 301, 85 Atl. 5. And, while it is said in Gale v. Butler, 35 Vt. 449, and in Re Chickering, 56 Vt. 82, that an appeal in chancery vacates and annuls the decree, it is not altogether certain that the injunction was wiped out. Prior to 1839 such would have been the result. But since that time, though cases are still transferred from the court of chancery to this court by "appeals," this court sits in such cases in error only. So, if the question was here essential, we might have to hold that an appeal from a decree enjoining a defendant from doing an act does not suspend the operation of the injunction, stay it, or disturb its operative force. To this effect are Barnes & Co. v. Chicago Typo. Union, 232 Ill. 402, 83 N. E. 932, 14 L. R. A. (N. S.) 1150, 122 Am. St. Rep. 129; 2 High, Injunc. (4th Ed.) § 1698a; State v. Dillon, 96 Mo. 56, 8 S. W. 781; Dewey v. Superior Court, 81 Cal. 64, 22 Pac. 333; Bullion, B. & C. Mining Co. T. Eureka Hill Mining Co., 5 Utah, 151, 13 Pac. 174; 2 Cyc. 913. It is to be noted that we are now speaking of prohibitory injunctions only.

But, if the injunction remained in force, a violation of it was a contempt of the court that granted it, and not this court. Barnes & Co. v. Chicago Typo. Union, 2 High, Injunc, and cases supra.

So far as this court is concerned, then, the case stands as if no injunction had been granted.

It does not follow, however, that this complaint is without merit, for its allegations are broad...