Binkley v. United States

• Decision Date: 29 June 1922
• Docket Number: 5874.
• Citation: 282 F. 244
• Parties: BINKLEY v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

282 F. 244

BINKLEY v. UNITED STATES.

No. 5874.

United States Court of Appeals, Eighth Circuit.

June 29, 1922

E. G Mitchell, of Harrison, Ark., for plaintiff in error.

Charles F. Cole, U.S. Atty., of Batesville, Ark., W. A. Utley, Asst U.S. Atty., of Benton, Ark., and June P. Wooten, Sp. Asst U.S. Atty., of Little Rock, Ark.

Before LEWIS and KENYON, Circuit Judges, and JOHNSON, District Judge.

KENYON Circuit Judge.

At the time of the matters in controversy in this case the Missouri & North Arkansas Railroad Company was in the hands of a receiver, appointed by the District Court of the United States in and for the Eastern District of Arkansas. On the 28th day of March, 1921, C. A. Phelan, receiver of the said Missouri & North Arkansas Railroad Company, filed a petition supported by affidavit of one Green, asking for issuance of a writ of attachment against Claude Binkley for contempt of court in violating a certain order of the court, which order had previously been issued and is as follows:

'In the District Court of the United States for the Western Division of the Eastern District of Arkansas.

'St. Louis Union Trust Company, Plaintiff, v. Missouri & North Arkansas Railroad Company, Defendant.

'It appearing from the verified petition of C. A. Phelan, Esq., receiver in the above-entitled cause, that certain persons formerly in his employ are interfering with the operation of said railroad in conformity with the directions of the court, by burning bridges, taking up rails, stoning cars, and assaulting employees of the said receiver in the operation of the road, and that unless protected by this court it is impossible for the said receiver to operate said railroad:

'It is therefore by the court ordered that the marshal of the United States for the Eastern district of Arkansas appoint one special deputy for the protection of the said railroad to be stationed at Shirley, one at Heber Springs, one at Kensett, and one at Cotton Plant, and arrest any person or persons interfering with the operation of said road or any of the employees for the purpose of preventing them from discharging their duties as such employees and produce them in court; that the expense of said marshals be paid by the receiver.

(Signed) Jacob Trieber, Judge.'

The court thereupon directed that writ of attachment issue against plaintiff in error, Claude Binkley. He was brought before the court and proceedings were duly had, resulting in a finding that said Claude Binkley had violated the order of the court and was in contempt.

On April 16, 1921, upon hearing, Binkley was adjudicated guilty of contempt, and it was ordered that he be confined in the county jail of Saline county for 60 days as punishment therefor. Counsel for plaintiff in error contends in argument that the cause is before this court for hearing de novo. We do not so understand the law. The Supreme Court of the United States in Bessette v. W. B. Conkey Co., 194 U.S. 324, 338, 24 Sup.Ct. 665, 671 (48 L.Ed. 997), says:

'Considering only such cases of contempt as the present-- that is, cases in which the proceedings are against one not a party to the suit, and cannot be regarded as interlocutory-- we are of opinion that there is a right of review in the Circuit Court of Appeals. Such review must, according to the settled law of this court, be by writ of error. * * * On such a writ only matters of law are considered. The decision of the trial tribunal, court or jury, deciding the facts, is conclusive as to them. ' Stewart

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