Blankenburg v. Commonwealth

• Decision Date: 08 July 1927
• Citation: 157 N.E. 693,260 Mass. 369
• Parties: BLANKENBURG v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

260 Mass. 369

157 N.E. 693

BLANKENBURG

v.COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

July 8, 1927.

Report from Supreme Judicial Court, Suffolk County.

Ida M. Blankenburg was adjudged to be guilty of contempt of court, and she petitions for a writ of error. On report of a single justice. Order dismissing writ of error reversed. Order denying motion for writ of certiorari affirmed.J. J. Cummings, of Boston, for plaintiff in error.

M. F. Weston, Asst. Atty. Gen., for the Commonwealth.

RUGG, C. J.

[1] This is a petition for a writ of error, whereby is drawn in question a sentence of imprisonment imposed upon the petitioner by a judge of probate upon a finding that she was guilty of contempt of court by willful and intentional perjury and subornation of perjury committed by her in the presence of the court during the trial of a petition for the allowance of a will. At the threshold lies the question whether writ of error is available to review a proceeding for contempt of this nature established by an adjudication of the probate court. A writ of error lies only to review proceedings had according to the course of the common law. That is settled by decisions covering many years. Martin v. Commonwealth, 1 Mass. 347, 388, 389, 394, 397, 398;Commonwealth v. Marsino, 252 Mass. 224, 228, 147 N. E. 859;New York Central Railroad v. Ayer, 253 Mass. 122, 127, 128, 148 N. E. 567, and cases collected. By G. L. c. 250, § 3, a writ of error is authorized ‘in a civil action.’ These words have been held not to include suits in equity because these are not proceedings according to the common law.

[2][3] Bill of review is the appropriate process whereby, after final decree has been entered, to correct errors of law which have occurred in a suit in equity. Boston & Maine Railroad v. Greenfield, 253 Mass: 391. Proceedings in probate courts usually are not according to the course of the common law. In Smith v. Rice, 11 Mass. 507, 513, a proceeding in a probate court for the division of land, it was said that, although there was error of law in the decree such as would be revised by writ of error if the proceedings were according to common law, ‘no writ of error lies to the probate court. Their proceedings not being according to the course of the common law, a party situated like the present demandant has no means of revising the decree.’ The history of the establishment and growth of probate courts during the colonial and provincial periods of this commonwealth, and a statement of the subjects committed to their jurisdiction, and the reasons therefor, are elaborated in the exhaustive opinion of Chief Justice Shaw in Peters v. Peters, 8 Cush. 529, where it was held that certiorari does not lie to those courts. It there is demonstrated that in general the procedure of those courts is not according to the common law. See, also, Waters v. Stickney, 12 Allen, 1, 90 Am. Dec. 122. In Fitzgerald v. Commonwealth, 5 Allen, 509, 510, 511, are found these words:

‘The * * * question is whether a writ of error will lie to the judge of probate. It is well settled that it will not, as to any decree or judgment rendered by him in the exercise of his ordinary jurisdiction, for the reason that proceedings before him are not usually according to the course of the common law. But this reason is not applicable to the present case.’

That conclusion was reached because special criminal jurisdiction had been conferred by statute upon probate courts, and the proceeding sought to be reviewed was brought under that statute and it was held that a writ of error would lie. Another decision to the same effect is Kenney's Case, 108 Mass. 492, 496.

[4] Therefore, in order to ascertain whether a writ of error will lie in the case at bar, inquiry must be made to ascertain the precise nature of the proceeding sought to be reviewed. That is a proceeding for contempt. It was not instituted by a party to the litigation concerning the proof of the will, but by the judge himself, who, in open court, ordered the arrest of the petitioner for the commission of the acts later found by him to constitute contempt. It was not a part of the original petition pending in the probate court, but was an independent proceeding. Its sole purpose was to punish the petitioner for an offense committed directly against the authority and dignity of the court and to vindicate the rights of organized society and the majesty of the law. Hurley v. Commonwealth, 188 Mass. 443, 445, 74 N. E. 677,3 Ann. Cas. 757. To resort to the recognized although perhaps somewhat imperfect nomenclature of the decisions, confessedly this was a criminal rather than a civil contempt in all its characteristics. The act charged constituted a crime. The punishment inflicted was imprisonment in jail. The practical effect of the proceeding upon the petitioner had the incidents significant of a conviction for crime. In view of the discussion of the nature of criminal contempt in Root v. McDonald, 258 Mass.-, 157 N. E. 684, just decided, and the cases there collected, no further statement is necessary to support the conclusion that this belongs to the category of criminal contempts.

[5] It is not open to doubt that the probate courts of this commonwealth have jurisdiction over contempts of this nature. They are courts of record and of superior and general jurisdiction. G. L. c. 215, §§ 1, 2. As such, they possess the inherent power summarily to investigate and to punish as for a public wrong those committing acts tending to obstruct or to degrade the administration of justice. Such power is essential to the performance of their functions, to the maintenance of their authority, and to their capacity to determine the rights of parties according to law. This power cannot be dispensed with in a court because it is necessary to the execution of all its other powers. It is a part of the law of the land. Whitcomb's Case, 120 Mass. 118, 120,21 Am. Rep. 502;Walton Lunch Co. v. Kearney, 236 Mass. 310, 315, 316, 128 N. E. 429;Telegram Newspaper Co. v. Commonwealth, 172 Mass. 294, 298, 52 N. E. 445,44 L. R. A. 159, 70 Am. St. Rep. 280;Commonwealth v. McNary, 246 Mass. 46, 50, 140 N. E. 255, 29 A. L. R. 483; See Ex parte Grossman, 267 U. S. 87, 114, 45 S. Ct. 332, 69 L. Ed. 527, 38 A. L. R. 131. Like power and authority for punishing for contempts as are possessed by the Supreme Judicial Court or the superior court in equity are conferred upon probate courts by the express terms of G. L. c. 215, § 34. Further power to deal with contempts such as the present is conferred by G. L. c. 215, § 57. This is but declaratory of the common law.

[6] The process of attachment for contempt is used by probate courts to enforce orders and decrees within strictly probate jurisdiction. The use of that process in aid of distinctively probate jurisdiction; for example, concerning separate support, alimony, support of children and other aspects of domestic relations, has never been regarded as partaking of criminal features. Contempt proceedings to that end are remedial and coercive, are not according to the common law, are not of a criminal nature, and come within the general principle that they cannot be reviewed by writ of error. Contempt proceedings of that nature differ radically from the case at bar, where the contempt proceeding is not remedial or coercive, but exclusively punitive. It is designed wholly to punish an attempt to prevent the course of justice.

[7] In our opinion it follows from all these considerations that a proceeding for contempt such as is disclosed on this record is a proceeding at common law. It is in exercise of a jurisdiction with which the common law of this commonwealth clothes all its courts. It is a proceeding which in its essential results upon the contemner is like a criminal proceeding, although differing in many particulars from ordinary prosecutions for crime in common-law courts. Because this is a contempt of a kind punishable as a public wrong by probate courts, because it is a separate proceeding in vindication of the authority of courts and the majesty of the law, because it is governed in procedure by the degree of proof, presumption of innocence and rules of evidence pertaining to the criminal law, it is commonly treated as a criminal contempt and for some purposes as a criminal case. Root v. McDonald, 258 Mass.-, 157 N. E. 684, and cases there collected and reviewed; Gompers v. United States, 233 U. S. 604, 610, 34 S. Ct. 693, 58 L. Ed. 1115, Ann. Cas. 1915D, 1044; Ex parte Grossman, 267 U. S. 87, 45 S. Ct. 332, 69 L. Ed. 527, 38 A. L. R. 131; O'Shea v. O'Shea, Ex parte Tuohy, 15 P. D. 59; Seaward v. Paterson, [1897] 1 Ch. 545.

[8] ‘At common law it was undoubted that no court reviewed the proceedings of another court in contempt matters. In Crosby's Case, 3 Wils. 188, Mr. Justice Blackstone said: ‘The sole adjudication of contempts, and the punishment thereof, in any manner, belongs exclusively, and without interfering, to each respective court.’' Bessette v. W. B. Conkey Co., 194 U. S. 324, 330, 24 S. Ct. 665, 667 (48 L. Ed. 997). That principle prevails in this commonwealth. Hurley v. Commonwealth, 188 Mass. 443, 444, 74 N. E. 677,3 Ann. Cas. 757, and cases there collected; State v. Bittner, 102 W. Va. 677, 136 S. E. 202, 205. But provision for review in contempt has long been a part of our jurisprudence by virtue of legislative enactment. It is now embodied in G. L. c. 250, in these words:

‘Sec. 3. A judgment in a civil action may be re-examined, reversed or affirmed upon a writ of error * * * for any error in law or in fact. * * *

‘Sec. 9. A judgment in a criminal case may be re-examined and reversed or affirmed upon a writ of error for any error in law or in fact.’

The case at bar can be so re-examined, if at all, only under section 9. The scope of that section was considered in Hurley v. Commonwealth, 188 Mass. 443, 74 N. E. 677,3 Ann. Cas. 757. Upon great...