Charles Cushman Co. v. Mackesy

CourtSupreme Judicial Court of Maine (US)
Writing for the CourtTHAXTER, Justice.
Citation200 A. 505
PartiesCHARLES CUSHMAN CO. et al. v. MACKESY et al. VENUS SHOE MFG. CO. v. SAME.
Decision Date30 June 1938
200 A. 505

CHARLES CUSHMAN CO. et al.
v.
MACKESY et al.
VENUS SHOE MFG.
CO.
v.
SAME.

Supreme Judicial Court of Maine.

June 30, 1938.


200 A. 506

Exceptions from Supreme Judicial Court, Androscoggin County, in Equity.

Proceedings by the Charles Cushman Company and others and the Venus Shoe Manufacturing Company, respectively, to adjudge William J. Mackesy and others in contempt for violating an injunction. Respondents were convicted of contempt, and they bring exceptions.

Proceedings dismissed for lack of verification of complaint.

Argued before DUNN, C. J., and STURGIS, BARNES, THAXTER, and HUDSON, JJ.

Skelton & Mahon, of Lewiston, George C. Webber & Donald W. Webber, of Auburn, and Berman & Berman, of Lewiston, for plaintiffs. A. Raymond Rogers, of Waterville, Sumner Marcus, of Boston, Mass., and Ernest L. Goodspeed, of Gardiner, for defendants.

THAXTER, Justice.

&gt

This case arises out of petitions charging the respondents with contempt of court.

On April 9, 1937 two separate bills in equity were filed in the Supreme Judicial Court in the County of Androscoggin against certain labor organizers, some of whom were officials of the United Shoe Workers of America, an affiliate of the Committee for Industrial Organization. The plaintiffs in these bills were various shoe manufacturers located in the cities of Lewiston and Auburn who sought injunctions both temporary and permanent against the continuation of a strike alleged to have been called by the defendants and against all activities in support of such strike. On April 20th, after an extended hearing on the consolidated bills, a temporary injunction was issued declaring the strike illegal; and the defendants, their agents, servants, attorneys and representatives, were enjoined until further order of court from maintaining, encouraging, aiding and abetting said strike and from inducing, advising, counselling, or aiding the employees of the plaintiffs to continue it. Coercion, intimidation and all forms of picketing were forbidden. On April 22nd, a petition for contempt was filed by the plaintiffs against six of the defendants mentioned in the original bills, and on April 23rd a second petition was filed against Sidney Grant, an attorney who had appeared for the defendants at the injunction hearing. These two petitions prayed that each of the respondents be adjudged in contempt on the ground that each of them in violation of the injunction

200 A. 507

had addressed meetings urging the continuation of the strike, and that three of them, Hapgood, Mackesy, and Henry, had directed picketing and had incited a riot. On May 4th a hearing opened before a jury empanelled in accordance with the provisions of Pub.Laws 1933, Ch. 261. The respondents were found guilty and sentenced to six months in jail.

Rev.Stat.1930, Ch. 91, Sec. 67, in accordance with which the contempt petitions purport to have been filed, provides that "No appeal lies from any order or decree for such punishment, nor shall exceptions thereto be allowed, save upon questions of jurisdiction." Exceptions were taken and allowed by the court, if allowable. Certain of these question the jurisdiction of the court. The exceptions were argued at the September, 1937 term of the Law Court. The record and the transcript of the evidence required by the presiding justice to be a part of the bill were only partially included, and the exceptions were dismissed in order that the omission might be supplied. Charles Cushman Co. et al. v. Mackesy et al., Venus Shoe Mfg. Co. v. Mackesy, 135 Me. 294, 195 A. 365. The corrected record is now before us.

The respondents claim that the court was without jurisdiction to render any judgment against them because the contempt petitions on which the proceeding was founded were not under oath. This was a defect which was not called to the attention of the presiding justice and possibly was not noticed by respondents' counsel until after the hearing had ended. In fact it is not set forth specifically in the bill of exceptions. This is not, however, of importance for a want of jurisdiction is fatal in every stage of a cause and may be brought to the attention of the court at any time. Darling Automobile Company v. Hall et al., 135 Me. 382, 197 A. 558; Powers v. Mitchell, 75 Me. 364. The petition against Sidney Grant was not even signed by a party but only by the attorneys for one of the parties. The procedure authorizing punishment for contempt for disobedience of an injunction is governed by statute. Rev. Stat. 1930, Ch. 91, Sec. 67. This reads as follows:

"Whenever a party complains in writing, and under oath, that the process, decree, or order of court, which is not for the payment of money only, has been disregarded or disobeyed by any person, summary process shall issue by order of any justice, requiring such person to appear on a day certain and show cause why he should not be adjudged guilty of contempt, and such process shall fix a time for answer to the complaint, and may fix a time for hearing on oral testimony, depositions, or affidavits, or may fix successive times for proof, counter proof, and proof in rebuttal, or the time for hearing and manner of proof may be subsequently ordered upon the return day or thereafter. The court may, for good cause, enlarge the time for such hearing. If the person so summoned does not appear as directed, or does not attend the hearing at the time appointed therefor, as enlarged, or if, upon hearing, he is found guilty of such disregard or disobedience, he shall be adjudged in contempt, and the court may issue a capias to bring him before it to receive sentence, and may punish him by such reasonable fine or imprisonment as the case requires. The court may allow such offender to give bail to appear at a time certain, when such punishment may be imposed, if he continues in contempt. But when a second time found guilty of contempt in disregarding or disobeying the same order or decree, no bail shall be allowed. When such person purges himself of his contempt, the justice may remit such fine or imprisonment or any portion thereof. No appeal lies from any order or decree for such punishment, nor shall exceptions thereto be allowed, save upon questions of jurisdiction, nor in any case shall such exceptions suspend the enforcement of any such order or decree, unless the court so directs."

This provision was first enacted in 1881, Pub.Laws 1881, Ch. 68, Sec. 23, and has come down without change through the various revisions of the statutes in 1883, c. 77, § 33, 1903, c. 79, § 36, 1916, c. 82, § 36, and 1930, c. 91, § 67. It has been amended by the provisions of Pub.Laws 1933, Ch. 261, but not with respect to the steps to be taken to initiate the proceedings.

At the time that Maine became a separate state in 1820, the Supreme Judicial Court was not granted general equity powers. Jurisdiction was given in certain specified cases. From time to time this was enlarged; but it was not until 1874 that full equity powers were granted. Our court has consistently held that it

200 A. 508

has no equitable jurisdiction except in so far as it may have been conferred by legislative enactment. Tuscan v. Smith, 130 Me. 36, 153 A. 289, 73 A.L.R. 1344.

In 1881, after the exercise by the court of this broad authority for a period of seven years, it was apparently felt advisable by the legislature to specify in detail the rules to govern the use of it. These were set forth with great clearness in the statute enacted at that time, Pub.Laws 1881, c. 68. This was entitled "An Act to Regulate the Practice in Equity Proceedings." It was, however, something more than a direction or guide on procedural problems. This act was incorporated in the revision of the statutes in 1883 under the heading "Equity Powers" in that portion of chapter 77 entitled: "Supreme Judicial Court. Organization, Jurisdiction and Powers." Rev.Stat.1883, Ch. 77. With minor modifications and some additions the provisions of this law are now incorporated in Rev.Stat.1930, Ch. 91, relating in part to the equity powers of the supreme judicial and superior courts.

The framers of the original act, realizing that the authority to punish for contempt was a necessary attribute of a court invested with equity jurisdiction, inserted Section 23 to define and to limit the manner in which such power should be exercised.

The power of courts to punish for contempt has existed from earliest times. It was useless to establish courts unless they had authority to punish acts which might interrupt the orderly course of judicial procedure; and it was likewise futile to confer jurisdiction to issue orders or injunctions without the power to enforce obedience to such decrees.

Contempts are of two kinds. There are those which occur in the presence of the court, which tend to bring the court into disrepute and interfere with the orderly conduct of judicial proceedings; and there are those, of which the court does not have first-hand information, for example those arising out of the failure to obey some order which the court has lawfully made. The procedure for punishment in the two cases is different. In the first the court may forthwith on its own initiative punish the offender; in the second the matter must be brought to the court's attention by some formal pleading and sentence may be imposed only after a hearing. Androscoggin & Kennebec...

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23 practice notes
  • Pineland Lumber Co. v. Robinson
    • United States
    • Supreme Judicial Court of Maine (US)
    • January 25, 1978
    ...Me. 102, 208 A.2d 313 (1965) (verification of amended petition for the writ of habeas corpus); Charles Cushman Co. v. Mackesy, 135 Me. 490, 200 A. 505, 118 A.L.R. 148 (1938) (complaint for contempt must be in writing and under The great majority of the authorities agree that, where the stat......
  • Van Sweringen v. Van Sweringen, Nos. A--745--53
    • United States
    • New Jersey Superior Court – Appellate Division
    • March 4, 1955
    ...17 C.J.S., Contempt, § 72; 12 Am.Jur., Contempt, § 68; Annotation, 118 A.L.R. 155, 156; Charles Cushman Co. v. Mackesy, 135 Me. 490, 200 A. 505, 118 A.L.R. 148 (Sup.Jud.Ct.1938); In re Wood, 82 Mich. 75, 45 N.W. 1113 (Sup.Ct.1890). We agree that when the drastic power of the court to deal w......
  • Chula v. Superior Court In and For Orange County
    • United States
    • United States State Supreme Court (California)
    • January 10, 1962
    ...650; People v. Rosenthal, 370 Ill. 244, 248-249, 18 N.E.2d 450, 125 A.L.R. 1271; Cushman Co. et al. v. Mackesy et al., 135 Me. 490, 494, 200 A. 505, 118 A.L.R. 148; In re Clark, supra; State ex rel. Beck v. Lush, 168 Neb. 367, 370, 95 N.W.2d 695, 72 A.L.R.2d 426; Ex Parte Mylius, 61 W.Va. 4......
  • Warren v. Waterville Urban Renewal Authority
    • United States
    • Supreme Judicial Court of Maine (US)
    • April 24, 1972
    ...having such basic deficiencies are vulnerable to attack either in direct appeals (Charles Cushman Co. v. Mackesy, 193,, 135 Me. 490, 200 A. 505), or, if the want of jurisdiction appears on the face of the record, then in an appropriate collateral procedure. Hobbs v. Hurley, 1918, 117 Me. 44......
  • Request a trial to view additional results
23 cases
  • Pineland Lumber Co. v. Robinson
    • United States
    • Supreme Judicial Court of Maine (US)
    • January 25, 1978
    ...Me. 102, 208 A.2d 313 (1965) (verification of amended petition for the writ of habeas corpus); Charles Cushman Co. v. Mackesy, 135 Me. 490, 200 A. 505, 118 A.L.R. 148 (1938) (complaint for contempt must be in writing and under The great majority of the authorities agree that, where the stat......
  • Van Sweringen v. Van Sweringen, Nos. A--745--53
    • United States
    • New Jersey Superior Court – Appellate Division
    • March 4, 1955
    ...17 C.J.S., Contempt, § 72; 12 Am.Jur., Contempt, § 68; Annotation, 118 A.L.R. 155, 156; Charles Cushman Co. v. Mackesy, 135 Me. 490, 200 A. 505, 118 A.L.R. 148 (Sup.Jud.Ct.1938); In re Wood, 82 Mich. 75, 45 N.W. 1113 (Sup.Ct.1890). We agree that when the drastic power of the court to deal w......
  • Chula v. Superior Court In and For Orange County
    • United States
    • United States State Supreme Court (California)
    • January 10, 1962
    ...650; People v. Rosenthal, 370 Ill. 244, 248-249, 18 N.E.2d 450, 125 A.L.R. 1271; Cushman Co. et al. v. Mackesy et al., 135 Me. 490, 494, 200 A. 505, 118 A.L.R. 148; In re Clark, supra; State ex rel. Beck v. Lush, 168 Neb. 367, 370, 95 N.W.2d 695, 72 A.L.R.2d 426; Ex Parte Mylius, 61 W.Va. 4......
  • Warren v. Waterville Urban Renewal Authority
    • United States
    • Supreme Judicial Court of Maine (US)
    • April 24, 1972
    ...having such basic deficiencies are vulnerable to attack either in direct appeals (Charles Cushman Co. v. Mackesy, 193,, 135 Me. 490, 200 A. 505), or, if the want of jurisdiction appears on the face of the record, then in an appropriate collateral procedure. Hobbs v. Hurley, 1918, 117 Me. 44......
  • Request a trial to view additional results

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