Campbell v. Justices of Superior Court
| Decision Date | 03 March 1905 |
| Citation | 187 Mass. 509,73 N.E. 659 |
| Parties | CAMPBELL v. JUSTICES OF SUPERIOR COURT. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Edgar O. Achorn and Walter B. Grant, for petitioner.
G. W Anderson, for respondents.
This is a petition for a writ of mandamus to compel the justices of the superior court to proceed with the hearing of a suit in equity, upon exceptions to a master's report, and thereafter upon the merits. We treat the reservation as a report of the questions of law which arise upon the record and the agreement of the parties, under Rev. Laws, c. 156, § 7. We do not think that the slight change in this section from the language of Pub. St. 1882, c. 150, § 8, was intended to change the meaning of the provision, and it has always been held that a justice of the Supreme Judicial Court sitting at the trial of an action at law, might report questions of law to the full court, without deciding them.
The petitioner, who is the plaintiff in that suit, is in contempt of the court for a violation of an injunction. The principal question is whether a plaintiff who is in contempt has an absolute right to proceed in the trial--such that it is the legal duty of the court, upon his request, to permit him to go on. The authorities agree upon the familiar doctrine that a party in contempt is not in a position to ask the court for any favor or indulgence. 1 Dan. Ch. Pl. & Pr. (5th Am. Ed.) 504, 505, and notes; Hovey v. Elliott, 167 U.S. 409 17 S.Ct. 841, 42 L.Ed. 215, and cases cited; In re Wickham, 35 Ch. D. 272; Clark v. Dew, 1 Russ. & M. 103; Richets v. Mornington, 7 Sim. 200; Rogers v. Paterson, 4 Paige, 450. In Hovey v Elliott, ubi supra, many cases were reviewed; and it was held that, when a defendant in equity has filed an answer and prepared a defense, the plaintiff cannot have his answer stricken from the files, and the case go to judgment against him, because of his subsequent contempt. It was decided that such a proceeding, if enforced, would be a taking of property without due process of law. The case of Walker v. Walker, 82 N.Y. 260, which shows a different view, was criticised, and held to be without substantial support in the cases therein referred to. But the decision is not in conflict with the contention of the present respondents, that a plaintiff, while he is in contempt, cannot proceed to a trial upon the merits. The early English cases are conflicting on this point, but those that are relied upon by the petitioner (see Wilson v. Bates, 3 M. & C. 197; Cattell v. Simons, 5 Beav. 396; Chatterton v. Thomas, 35 L. J. Ch. 592) seem to be practically overruled by In re Wickham, 35 Ch. D. 272, which holds that a plaintiff who disobeys an order for the payment of costs on a preliminary matter will not be allowed to proceed with his case. The principle is analogous to that which precludes a plaintiff who is nonsuited in an action at law from prosecuting a second suit until he has paid the costs. Rev. Laws, c. 203, § 11. And it is inconsistent with the petitioner's contention that a plaintiff who has failed to do that which properly is required of him in the case may insist upon a trial as a matter of right. If a plaintiff prays for a decree against his adversary, we are of opinion that the principles stated in the cases first cited should be applied to a request to proceed with the case to a final judgment, as well as to requests for preliminary favors. It is plain that misconduct of a plaintiff that is treated as a contempt may otfen be of such a kind as would make it impossible to go on with the case without great injustice to the defendant. Suppose, for illustration, that a plaintiff disobeys an order to produce books and papers which the defendant is entitled to have in evidence, or refuses to answer interrogatories or questions put to him as a witness on the stand. It would be absurd to say that while in contempt for disobedience of an order of this kind a plaintiff would have a right to have the trial proceed. The statement of the law in Brinkley v. Brinkley, 47 N.Y. 40-49, is that 'a party in contempt will not be permitted to ask for the favor of the court, nor to take any aggressive proceedings against his adversary.' The following cases also tend to support this proposition with greater or less force: Rogers v. Paterson, 4 Paige, 450; Hazard v. Durant, 11 R.I. 195; Walker v. Walker, 82 N.Y. 260; Pickett v. Ferguson, 45 Ark. 177-191. 55 Am. Rep. 545; Allen v. Georgia, 166 U.S. 138, 17 S.Ct. 525, 41 L.Ed. 949; Robinson v. Owen, 46 N.H. 38. In Gordon v. Gordon, 141 Ill. 160-163, 30 N.E. 446. 21 L. R. A. 387, 33 Am. St. Rep. 294, the court said: 'Where a complainant is in contempt, there may be cogent reasons for holding that his proceeding shall be stayed so long as he remains in contempt, under the well-known maxim that he who seeks equity must do equity.' In the opinion in Atchison, etc., Railroad v. Jennison, 60 Mich. 232, 27 N.W. 6, are found these words: 'A complainant in a court of equity can always be compelled by that court to perform any conditions * * * which the court has a right to exact, by refusing to allow him to proceed with his case until he does what he ought to do.' In People v. Horton, 46 Ill.App. 434, the court held that a defendant was not precluded from his right to defend by being in contempt, and added: 'Had the suit been at his instance, and in such suit he, acting as one asking for relief, had been in contempt, a different question...
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