American Const. Co. v. Jacksonville, T. & K.W. Ry. Co.

• Decision Date: 19 November 1892
• Citation: American Const. Co. v. Jacksonville, T. & K.W. Ry. Co., 52 F. 937 (N.D. Fla. 1892)
• Parties: AMERICAN CONST. CO. v. JACKSONVILLE, T. & K.W. RY. CO.
• Court: U.S. District Court — Northern District of Florida

52 F. 937

AMERICAN CONST. CO. v. JACKSONVILLE, T. & K.W. RY. CO.

United States Circuit Court, N.D. Florida.

November 19, 1892

Bisbee & Rinehert, for complainant.

Cooper & Cooper and T. M. Day, Jr., for defendant.

SWAYNE District Judge.

This is a motion by the complainant company for an attachment against the defendant company and its officers for a contempt and violation of the temporary restraining order of July 6, 1892, and for the violation of the order made appointing Mason Young receiver on August 4, 1892. This proceeding was commenced by petition filed in this court November 7, 1892, a copy of which was served upon C. C Deming, vice president of the defendant company, in Jersey City, N.J., November 12, 1892, and a notice of the petition was served on defendant's counsel here in Jacksonville some days previous to the hearing. The matter was argued by both parties on the 18th of November, 1892, and taken under advisement by the court. No answer was offered to the petition. No extension of time was requested for privilege to file an answer, although it was argued at the time by the counsel for the respondent that the time was not sufficient in which to appear and answer. By the rules of New York, in which said vice president Deming resides, he would have been allowed four days in which to answer. By the record here he had six days in which to do so, which the court holds was ample time for that purpose. It further holds that, while a petition and rule for attachment are not the only methods which may be pursued in an action for contempt, it is a proper method, and in this case gave the defendant railroad company and Mr. Deming all of the time and privileges that they would have been entitled to under a rule to show cause. He was served with an exact copy of the petition containing the specific charges made against him, and he had six days in which to make answer thereto or ask for additional time in which to make said answer. As the court understands his position, he did neither, but rested his defense to the motion on technical objections to the complainant's method of procedure. He did come in, however, at the eleventh hour, on the morning on which this opinion was delivered, and asked that, if it should be against him, he might have further time in which to answer.

This therefore, being a proper method of proceeding, the defendant company and its vice president, Mr. Deming, being both in court, with ample notice of the charges against them, and with ample time in which to answer the same, and having failed to do so, it remains to be inquired whether there is evidence before the court to sustain the charges in the petition. That portion of the temporary restraining order claimed to be violated reads as follows:

'That the said defendant railway company, its officers, agents, attorneys, servants, and employes, are hereby enjoined and restrained from remitting, sending, or removing in any manner whatsoever any of the incomes, tolls, or revenues of the said defendant company from the jurisdiction of this court, either to its treasurer in New York or to any other officer or person whatsoever.'

It appears by a voucher produced before the court at this hearing that the defendant, the Jacksonville, Tampa & Key West Railway Company, on July 11, 1892, paid to Cooper & Cooper, counsel, the sum of $2,500. It further appears that this money was paid on the authority of Mr. C. C. Deming, vice president, approved by Mr. R. B. Cable, general manager, and by T. M. Day, Jr., attorney, and audited by Mr.

J. E Starke, general auditor. It is claimed in this action that such payment was a willful violation of the order of July 6, 1892, and it rendered all the parties who are responsible therefor guilty of contempt in willfully disregarding the order of this court. The fact that the managers and directors of a corporation, charged with fraud and mismanagement of that corporation, should take the money of the corporation with which to defend themselves against that charge, presents certain novel features for the consideration of the court, the decision of which had perhaps best be reserved until the final...