Burton, In re, 522

• Decision Date: 10 July 1962
• Docket Number: No. 522,522
• Court: North Carolina Supreme Court
• Parties: In the Matter of Ottway BURTON.

Page 581

126 S.E.2d 581

257 N.C. 534

In the Matter of Ottway BURTON.

No. 522

Supreme Court of North Carolina.

July 10, 1962

Cahoon, Egerton & Alspaugh, Greensboro, for petitioner contemnor.

Atty. Gen. T. W. Bruton and Staff Attys. Richard T. Sanders, Theodore C. Brown, Jr., and Harold D. Coley, Jr., Raleigh, for the State.

MOORE, Justice.

On 28 December 1961 Hal H. Walker, Special Judge of Superior Court, was at his home in Asheboro, Randolph County. The superior court was not in session and Judge Walker was in vacation. Ottway Burton is a practicing attorney, a member of the Randolph County Bar, and a resident of Asheboro.

The order signed by Judge Walker on 29 December 1961 makes recitals, which are summarized except where quoted verbatim, as follows: On 28 December 1961 the Judge had a telephone call from Moleta Louise Luther Bodsford. She was plaintiff in an action against her husband, James Herman Bodsford, for alimony without divorce and custody of child, then pending in Randolph County Superior Court. She stated to Judge Walker 'that she and her husband had agreed as to the custody of the child and that she had informed her attorney, Ottway Burton, that she wanted to take a nonsuit in the case,' and that Burton had told her 'he would not take a nonsuit or permit her to do so unless and until she had paid him the sum of $300.00 as attorney fees.' Judge Walker called Burton and 'requested that he and his client together with the attorney for the defendant be present at 10:30 A.M.' on the following day in the judge's chambers at the courthouse 'to hear the matters relating to the complaint made by' Mrs. Bodsford to the Judge. About 9:30 A.M. the following morning Burton telephoned Judge Walker and stated 'that he would not be present at the hearing and that the Court had no jurisdiction of the hearing, and therefore he would not attend.' In the telephone conversation the Judge ordered Burton to be present at 10:30 that day 'with his client, for a hearing on this cause and * * * Burton again refused to be present.' At 10:30 Mrs. Bodsford, her husband's attorney, and the Assistant Clerk of Superior Court, were present but Burton did not appear. The Judge ordered Deputy Sheriff Neal J. Cockerham to take Burton 'into custody * * * and bring him immediately before the (Judge) for a hearing for Contempt of Court.'

The order continues as follows:

'The undersigned Judge finds as a fact that the conduct of Ottway Burton, Attorney, in his failing and refusing to appear before the undersigned as ordered and in his attitude toward the Court constitutes direct Contempt of Court, and his actions and conduct committed in the presence of the Court and in conversations with the Court hindered and delayed the due administration of the law.

'It is now, therefore, ordered, adjudged and decreed that the said Ottway Burton be placed in the common jail of Randolph County for a period of ten days for direct Contempt of Court.'

The contemnor applied to Superior Court Judge Allen H. Gwyn for writ of habeas corpus alleging in substance that his imprisonment was illegal and that he had been denied due process of law. The application recites contemnor's version of the incident.

Judge Gwyn entered an order allowing a stay of execution 'so that he (Burton) may have five days' notice of the contempt proceeding against him in which to prepare his defense and * * * obtain counsel,' and directing contemnor to appear before Judge Walker for a further hearing on 6 January 1962.

Contemnor was released under Judge Gwyn's order, upon giving bond, after having been incarcerated for eleven hours.

At the hearing before Judge Walker on 6 January 1962 contemnor (1) made a special appearance and moved that the proceeding be dismissed for that no process had been served on him and the court had no jurisdiction of his person, (2) moved that the Judge disqualify himself because of interest and bias, and (3) demurred and moved to dismiss proceedings for that there was no matter before the Judge at the time of the alleged contempt of which the Judge had jurisdiction. All motions were overruled and contemnor excepted. The Judge reaffirmed the original contempt order and Burton was again committed to jail (this time for 9 days--credit for a full day was given for the eleven hours served). Upon application to Supreme Court, bond was fixed and execution stayed. As above indicated, certiorari was allowed.

The recitals in the order of Judge Walker of 6 January 1962 are more elaborate than in the former order. There are the following additional factual statements and conclusions (paraphrased except where copied verbatim): After talking with Mrs. Bodsford on 28 December 1961 the Judge was of the opinion 'that inquiry should be made into the complaint of' Mrs. Bodsford 'and into the care, custody, control and tuition of' the child. The Judge caused the Assistant Clerk of Superior Court to call Burton on the telephone and inform him that the Judge requested that he and his client be present at 10:30 the following morning for the Judge to 'hear matters relating to the complaint made by' Mrs. Bodsford 'and the custody, care, tuition and control of' the child '* * * (O)n the morning of 29th day of December 1961, while Court was in session in Chambers, the * * * Judge being engaged in hearing a motion duly before him of G. Edward Miller Esq., attorney of Asheboro, and at approximately 9:30 A.M. * * * Burton called * * * on the telephone in the Judge's Chambers and told him he would not be present at the hearing, that this Court had no jurisdiction of the matter and that he would not attend; whereupon the * * * Judge, over the telephone' ordered him to be present. Burton, 'in a belligerent and contemptuous manner, again refused to attend and refused to obey the orders of the Court.' About 11:00 A.M. the Deputy Sheriff 'returned to the Superior Courtroom * * * accompanied by * * * Burton; that the Court was then in session for the purpose of hearing the matter and at this particular time the * * * Judge was sitting on the bench.' The Judge questioned Burton 'in regard to the matter into which the Court was making inquiry, the same being the Bodsford case, and in particular making inquiry as to why * * * Burton was not present at the time he was ordered to be present; that * * * Burton refused to answer the questions propounded * * * and addressed the Court in a tone of voice and manner both contemptuous and contumacious, surly, antagonistic and belligerent, and otherwise behaved in a contemptuous and insolent manner, showing complete disrespect for the Court during the sitting of said Court, in the immediate view, presence and hearing of the Court, which disorderly, insolent, contemptuous and contumacious behavior * * * directly tended to interrupt the proceedings of the Court and to impair the respect due the authority of the Court, and did in fact impair the respect due the authority of the Court, he being at that time and place an officer of the Court and subject to the jurisdiction of the Court.' The conduct of Burton 'constituted a direct contempt of this Court.'

While we are not permitted to find or consider facts beyond those set out in the order of Judge Walker, we consider it appropriate to state contemnor's version of the matter. The following is a summary of the statement made by him in affidavits: Mrs. Bodsford employed him as counsel, representing that her husband had abandoned her without providing support and had assaulted and threatened to kill her. Burton represented her in a peace bond proceeding against her husband, and in the suit in question. He moved for alimony pendente lite and custody of child before Gambill, J., on 12 December 1961, but Judge Gambill continued the matter to the January Term 1962 because defendant was in John W. Umstead Hospital. Burton held many conferences in an effort to settle the case. On 27 December 1961 Mrs. Bodsford told Burton she wanted to settle the case on terms whereby she would have custody of the child, receive $45 per month for the child's support and nothing for herself. Burton advised strongly against such settlement since her husband was earning approximately $150 per week. On the morning of 28 December 1961 Mrs. Bodsford came to Burton's office and stated that she wanted to take a nonsuit and was terminating his employment. Burton told her that he would not assist her in taking a nonsuit, he advised against it, it was against her best interest, and she had the right to discharge him, hire another lawyer and take a nonsuit. He asked her to pay him the $300 fee they had agreed upon, which was the minimum fee set by the Randolph County Bar for such matters. She refused to pay the fee and stated that she was discharging him. That afternoon the Assistant Clerk of Superior Court called him on the telephone and told him that Judge Walker requested his presence in his chambers the following morning at 10:30. He immediately called Judge Walker and asked the nature of the proceedings, and was told that Mrs. Bodsford had made a complaint by telephone, and the Judge desired him to appear 'with respect to the complaint.' On the following morning he called Judge Walker and asked him if there was any written order or notice requiring him to appear, and was told there was not. He then stated to the Judge that it did not appear that there were any proceedings pending, that the Judge was without jurisdiction to require him to appear, and that he respectfully declined to appear. He 'never spoke or acted in any disrespectful manner.' About 10:45 Deputy Sheriff Neal Cockerham appeared in Burton's office and stated that Judge Walker had sent for him. Burton asked if he had a warrant or any process, and was advised that he did not but had instructions to take him before the Judge. Burton was required to go before the Judge involuntarily, and as he reached the courtroom the Judge entered and asked why Burton...