Alred v. Celanese Corp. of America

• Citation: 54 S.E.2d 225,205 Ga. 499
• Decision Date: 15 June 1949
• Docket Number: 16583.
• Parties: ALRED et al. v. CELANESE CORPORATION OF AMERICA.
• Court: Supreme Court of Georgia

54 S.E.2d 225

205 Ga. 499

ALRED et al. v. CELANESE CORPORATION OF AMERICA.

No. 16583.

Supreme Court of Georgia

June 15, 1949

Rehearing Denied June 28, 1949.

There are twelve plaintiffs in error in case No. 16,583, now to be considered, namely: S. T. Alred, J. L. Bowman, Troy Cline, E J. Ellis, Chesley Gaines, Billy Marion Ingram, Joe Poole, W S. Robertson, W. V. Smith, Hubert Summerville, Jack Thomas and Davis Whorton. They were adjudged in contempt of court December 6, 1948, on a petition for citation filed by Celanese Corporation of America on November 18, 1948, and a rule nisi that was issued thereon. It appears that the trial began on December 2. The petition for citation alleged that these twelve and four other persons named (besides others not named) had violated the restraining order issued on October 25 by the doing of certain acts set forth in said petition for citation; the allegations of said petition being as follows:

1. 'That it [Celanese Corporation of America] filed in this court on the 25th day of October, 1948, its verified petition for injunction and other relief, which was docketed as above shown; and a temporary restraining order was granted by this court as will be seen by reference to such proceedings restraining named persons individually and as representatives of that class of persons who are members of the Textile Workers Union of America--and their allies and confederates, specifically from blocking any entrance of the plaintiff, and from maintaining any mass picketing at any entrance of the plaintiff, and from blocking any entrance for ingress or egress on foot or by vehicles of any person or persons desiring to enter or leave petitioner's premises or to deliver goods thereto or dispatch goods therefrom.'

2. 'On November 18, 1948, the Southern Railway Company sent an engine to deliver several cars of freight to plaintiff. As it entered the track to plaintiff's premises and plant it was met by S. T. Alred, Davis Whorton, Joe Poole, Chesley Gaines, J. Milburn Fowler, Billie Marion Ingram, W. S. Robertson, Jack Thomas, E. J. Ellis, Troy Cline, Hubert Summerville, Dan S. Pugh, W. A. Cornett, W. V. Smith, H. A. Martin, J. L. Bowman, and a large number of other striking employees who were massed on and across said track so as to make it impossible for said train to enter said premises and plant.'

3. 'That an attorney for said plaintiff was present and told said named defendants that there was a restraining order by the superior court of Floyd County, Georgia, restraining them from interfering with said train or from blocking the entrance to said plant. The said Alred then replied, 'We don't give a God damn about any injunction, and we ain't going to move. The train is bigger than we are and he can run over us if he wants to, but they ain't going to move this sign and you ain't either.''

4. 'That all of said defendants were then, notwithstanding said injunction, massed in and on said track and did by force prevent said train from entering plaintiff's plant.'

The prayer of the petition was that citation issue requiring the respondents named to show cause 'why they should not be adjudged in contempt of the orders and processes of this court and punished accordingly.'

Other than the allegation contained in paragraph 3 of the petition as above quoted, as to the statement to the defendants by the attorney for the plaintiff, there was no averment in this particular petition for citation that the defendants had knowledge of such restraining order.

Counsel for the respondents made the following motion: 'If it please the Court, I would like to interpose and make the following motion. As Your Honor is well aware, on the 26th day of November, 1948, Your Honor directed the defendants and each of them in the cases pending under case 2741, Celanese Corp. of America v. J. D. Pedigo et al. to employ leading counsel to represent them in actions pending thereunder, and I was named and designated as leading counsel for these defendants, and Your Honor is well aware of the fact that since Friday, November 26, until this date I have been constantly engaged in the preparation and trial of the main issue, that is, case 2741, and because of such fact it has been utterly impossible for me to discuss the questions involved in these citations for contempt, that is, cases 3249 and 3258, designated for trial today, with any one of the defendants named therein or to interview a single witness in the cases or even to read the citations, for all of which reasons I am wholly unprepared to go to trial and do the defendants justice in the cases. I therefore move a continuance to a later date.'

It is stated in the bill of exceptions, 'the court then and there orally overruled said motion for continuance with the statement that there would be no more continuances and that the cases would proceed to trial.'

After hearing evidence, the judge on December 6 adjudged twelve of the named respondents (plaintiffs in error) guilty of contempt as alleged in the petition for citation, and imposed on them respectively the following penalties: S. T. Alred, a fine of $200 and imprisonment for 20 days; Chesley Gaines and W. S. Robertson, each a fine of $200 and imprisonment for 10 days; J. L. Bowman, E. J. Ellis, Billy Marion Ingram, Joe Poole, W. V. Smith, Hubert Summerville, Jack Thomas, and Davis Whorton, each a fine of $150 and imprisonment for 5 days; Troy Cline, a fine of $100. Only two of these respondents, namely, Alred and Thomas, were parties to the suit for injunction.

The assignments of error in the bill of exceptions sued out by the above named twelve persons are that the judge erred in: (1) Overruling a demurrer to the petition for citation, which demurrer (except ground 2, which is not relied on in this court) was substantially the same as the demurrer that was filed in No. 16581, Pedigo v. Celanese Corporation of America, Ga.Sup., 54 S.E.2d 252; (2) overruling the motion for continuance of the contempt hearing; (3) adjudging these twelve respondents guilty of contempt; it being contended among other things that the order adjudging the respondents guilty of contempt was contrary to the evidence and without evidence to support it; also that such judgment amounted to an abuse of judicial discretion.

Preceding the certificate to the bill of exceptions, the trial judge made the following statement as to additional facts which were before him and were considered by him in ruling on the motion for continuance:

'The foregoing bill of exceptions having been tendered and presented, I do certify that in addition to the recitations contained in said bill of exceptions and particularly in connection with the motion for continuance as set out on page three of said bill of exceptions, that on the 30th day of October, 1948, and during a discussion on the main bill, that is, the petition for injunction being No. 2741, counsel for the defendants stated that Isadore Katz was leading counsel in said cause, and in all of the citations then filed in connection with said matter, at said time the defendants were represented by Isadore Katz and Dave Jaffe of New York, and the [sic] firm of Wright & Scoggins of Rome, Georgia; that thereafter on November 5, 1948, a petition for removal to Fededal court was filed and at that time the respondents were represented by [sic] Isadore Katz, Dave Jaffe, Wright & Scoggins, Poole, Pierce & Hall, Warren Hall, and C. E. Gregory Jr.

'Thereafter on November 17, 1948, said matters came on for hearing, and it was stated in open court that [sic] Graham Wright of the firm of Wright & Scoggins was then leading counsel, inasmuch as Mr. Katz had absented himself from court without leave of court for the purpose of attending a convention, and the said Katz did not appear in court any more, and at said time, the said Dave Jaffe and Warren Hall were present in court assisting the said Graham Wright and his partner [sic] Robert Scoggins, a continuance was requested in said matters on the 17th day of November, 1948, and the balance of said cases were continued until the 22nd day of November, 1948, at the request of the respondents.

'That thereafter on the 22nd day of November, 1948, said matters so set came on for hearing and the attorneys representing the respondents who were present in court at said [sic] time were Graham Wright, Robert Scoggins of the firm of Wright [sic] & Scoggins, Dave Jaffe of New York City, and Warren Hall of [sic] th firm of Poole, Pierce & Hall of Atlanta Georgia, the hearing in said matter proceeded until Wednesday, November 24th, at which time the said Dave Jaffe requested leave of absence of the court, and the court refused the leave of absence, stating that there had been too much delay in the hearing of said matters at this time, and that practically all said delay was caused by respondents' counsel and by the respondents, and that the hearing in said matters would continue on Thursday and Friday, November 25th and 26th; notwithstanding this, the said Jaffe returned to New York City and was not present in court thereafter, and on November 25th a motion was made for continuance because of the illness of Graham Wright of the firm of [sic] Wright & Scoggins. Attorneys (sic) of the respondents present [sic] in court at said time was Robert Scoggins, the said Warren Hall having absented himself without leave of the court, and the said Jaffe being absent after refusal of a request by him for leave of absence. On said November 25th the court instructed the respondent to obtain leading counsel, as there would be no further continuance in these matters on account of the absence of the attorneys, no legal showing having been made as to the illness of said Graham Wright, but the court...