Ashby v. Ashby

• Decision Date: 07 November 1901
• Citation: 50 A. 473,62 N.J.E. 618
• Parties: ASHBY et al. v. ASHBY.
• Court: New Jersey Court of Chancery

50 A. 473

62 N.J.E. 618

ASHBY et al.

v. ASHBY.

Court of Chancery of New Jersey.

Nov. 7, 1901.

Proceedings by Timothy W. Ashby and others to punish Amos K. Ashby for a contempt of court consisting of a violation of an injunction served on him. Judgment for petitioners.

Clarence T. Atkinson, for complainants.

David J. Pancoast, for defendant.

GREY, V. C (orally). This is a proceeding by petition to punish the defendant, Amos K. Ashby, for an alleged contempt of the decree and injunction served upon him in this case. Not only the counsel, but the parties, are here in court and an expression of the court's views in the presence of the parties may aid in the settlement of the matter. The previous course of procedure was that a bill of complaint was filed in this court alleging that Amos K. Ashby claimed ownership of the fixtures in the mill called the "Delaware Avenue Mill," situated at Burlington, N. J., and that he gave out in speech and declared his purpose to remove those articles. The articles named were "three roller mills, one purifier, smut mill, separators, two buhr mills, flour packer, and all the belting and other fixtures in said mill." The bill also prays that he may be restrained from committing any waste upon the mill premises. The defendant, Amos K. Ashby, by answer, asserted his title to the disputed fixtures. There followed a very severe litigation, resulting in an adjudication in favor of the complainants, restraining the defendant, Amos K. Ashby, from removing the named articles and the belting and other fixtures in the mill, and from committing any waste. That injunction was admittedly served upon him on the 8th day of August, 1900. The executors of Edward Ashby's will, who are named in the bill of complaint as having a power of sale, after the decree was made sold the mill. The purchaser was David G. Ashby, a brother of the defendant, Amos K. Ashby. The purchase was made about August 8, 1900, and there was a delay of a week or two in delivering the deed. When David G. Ashby received it, possession was not delivered by Amos, and an action of ejectment appears to have been brought against him, which has been adverted to here in the testimony, resulting in a judgment for the plaintiff David G. Ashby, who was put in possession of the mill in February of the present year, 1901. He then found that the mill had been denuded of a very considerable part of its equipment. These facts are not denied by anybody. The petition now in hearing was then filed by David G. Ashby, one of the parties in the original suit against Amos K. Ashby, asking that the latter be attached for contempt for removing the following named parts of the equipment of the mill: "Belting on roll No. 1,070; main belt on engine; belt on flour packer; grain conveyer belt; belt running from main shaft in third story; belting on roll elevators, on grain elevators, on separators; a wheat heater; main grain elevator; set of big scales, which were set in floor; also small scales, flour packer tubes, 3 pulleys; also an awning attached to said premises." The proof is substantially without dispute that all of the articles there named were in the mill, and remained in the mill up to the time of the purchase by David G. Ashby, the petitioner, in August after the service of the writ of injunction. The proof is also substantially without dispute that Amos K. Ashby had built a new mill, foreseeing his removal from the old one, and that after the judgment in ejectment against him he had moved his business from the old mill to his new mill, and took with him almost all the articles named in the petition. I am not prepared to say that the testimony satisfies me that this removal of the fixtures was intendedly in contempt of the court in the sense that the defendant conceived a purpose to insult the court, and carried it into action by open defiance of its decree; but the evidence does indicate that he contemned the court in this: Having full knowledge of its order that he should not remove the equipment of the mill, he disobeyed it. His motive is of minor significance. My impression from the evidence is that he removed the articles named in order that his successor, when he got possession of the mill, might be put to serious inconvenience, annoyance, and loss in running it, and thus be less likely to be a dangerous competitor with himself. This is indicated by the fact...