Butler v. Fayerweather

• Decision Date: 05 January 1899
• Docket Number: 115.
• Citation: 91 F. 458
• Parties: BUTLER v. FAYERWEATHER et al.
• Court: U.S. Court of Appeals — Second Circuit

91 F. 458

BUTLER v. FAYERWEATHER et al.

No. 115.

United States Court of Appeals, Second Circuit.

January 5, 1899

Joseph H. Choate, for plaintiff in error.

Roger M. Sherman, for defendants in error.

Before WALLACE and SHIPMAN, Circuit Judges.

WALLACE Circuit Judge.

This is a writ of error to review an order committing the plaintiff in error for contempt, in default of answering certain questions propounded to him as a witness in a equity cause pending in the court in which the order was made. The witness was not a party to the cause, and based his refusal to answer the questions upon the ground of privilege; he being an attorney, and asserting the questions to call for professional communications of his client.

It is insisted for the defendant in error that the order cannot be reviewed upon a writ of error, but only upon appeal from a final decree in the cause in which it was made. This court in Gould v. Sessions, 35 U.S.App. 281, 14 C.C.A 366, and 67 F. 163, held a contempt of court to be a criminal offense, and an order imposing a fine therefor to be a judgment reviewable by a writ of error at the instance of the party aggrieved. It was determined in Crosby's Case, 3 Wils. 188, and declared by the supreme court in Ex parte Kearney, 7 Wheat. 38, that an adjudication for a contempt was a conviction, and a commitment in consequence an execution. In New Orleans v. Steamship Co., 20 Wall. 392, the supreme court said:

'Contempt of court is a specific criminal offense. The imposition of the fine was a judgment in a criminal case. That part of the decree is as distinct from the residue as if it were a judgment upon an indictment for perjury committed in a deposition read at the hearing.'

In re Debs, 158 U.S. 564, 15 Sup.Ct. 900, the defendants in an equity cause were committed for contempt for the violation of a preliminary injunction restraining them from committing the acts to enjoin which the suit was brought, and upon an application to the supreme court for a writ of error the writ was denied upon the ground that the order of committal was not a final judgment or decree. That was a case in which the propriety of the order could have been reconsidered by the court which made it at final decree, and, being an interlocutory order in the progress of the cause, could only be reviewed by the supreme court upon an appeal from the final decree. The case is quite different, however, when a person not a party to the cause is imprisoned or fined for contempt. The order proceeds upon a matter distinct from the general subject of the litigation. The aggrieved party has no opportunity to be heard when the cause is before the court at final hearing, and as to him the proceeding is finally determined when the order is made. Not being a party to the cause, he could not be heard on an appeal from a final decree; and, unless he can be heard by a writ of error; he has no review, but must submit to the determination of the court below, if the court has jurisdiction, however unwarranted it might be by the facts or the law of the case. It would be a reproach to the administration of justice if the statutes of the United States conferring appellate jurisdiction upon this court to review all final decisions of the circuit court failed to provide any means of review to the citizen who has been deprived of his liberty or required to pay a fine without just cause. We think the power conferred extends to a case like the present.

Whenever, in a cause, there is a determination of some question of right, a decision is final, in the sense in which an appeal from it is permitted, if it decides and disposes of the whole merits of the cause as between the parties to the appeal, reserving no further questions or directions for the further judgment of the court, so that to bring the cause again before the court for decision will not be necessary. Mackeye v. Mallory (decided by this court Feb. 23, 1897) 24 C.C.A. 420, 79 F. 1; Rouse v. Hornsby, 14 C.C.A. 377, 67 F. 219; Gumbel v. Pitkin, 113 U.S. 545, 5 Sup.Ct. 616; Central Trust Co. v. Grant Locomotive Works, 135 U.S. 207, 10 Sup.Ct. 736.

Upon its merits, the appeal presents the question whether an attorney who has prepared a codicil to a will alleged to have been executed and published by the testator, his client, and fraudulently destroyed by one of the executors named in a subsequent codicil, can be required to disclose its contents and whether it was signed by the testator in the presence of attesting witnesses, in form and manner to constitute a valid publication; the attorney being present at the time of the alleged publication, but not being an attesting witness. Irrespective of the effect of the statute of this state, the question would be free from doubt. The rule of evidence which forbids an attorney, without the consent of his client, to disclose communications made to him professionally by the client, applies generally to the contents of documents intrusted to him, unless he is a subscribing witness, whether the documents are evidence of title, formal instruments, or merely letters or memoranda. 2 Tayl.Ev. §§ 911-936. If he has attested an instrument for his client, the professional relations is thereby abandoned pro hac vice; and he may be compelled, not only to prove its execution, but all...