Cherry v. Cherry

• Citation: 253 Mass. 172,148 N.E. 570
• Parties: CHERRY v. CHERRY.
• Decision Date: 29 June 1925
• Court: United States State Supreme Judicial Court of Massachusetts

253 Mass. 172

148 N.E. 570

CHERRY

v.CHERRY.

Supreme Judicial Court of Massachusetts, Suffolk.

June 29, 1925.

Error to Superior Court, Suffolk County; Franklin T. Hammond, Judge.

Suit by Rebecca Cherry against Israel Cherry. To vacate an order of contempt for violation of injunction, defendant brings error. Writ of error dismissed.

Edw. M. Dangel and John J. Enright, both of Boston, and J. F. Grimes, for plaintiff in error.

A. S. Allen and H. S. Davis, both of Boston, for defendant in error.

RUGG, C. J.

This is a writ of error. The petition alleges in substance that the defendant in error brought in the superior court a suit in equity wherein she sought to enjoin the plaintiff in error, her husband, from prosecuting divorce proceedings brought by him against her and then pending in a court of the state of Nevada; that issue was joined in that suit, and that, after a trial in which the judge made full findings to the effect that both parties were and had been for many years domiciled in this commonwealth and that the husband had not acquired in the state of Nevada a domicile sufficient to give the courts of that state jurisdiction over the subject-matter of divorce, a final decree was entered enjoining the defendant, his servants, agents and attorneys, from further prosecuting the action for divorce pending in the court of Nevada. The petition further alleges that a petition for contempt was brought against the plaintiff in error in the superior court in the same cause for the violation of said injunction, wherein the court made an order adjudging him to be in contempt.

Writ of error and writ of scire facias were issued. Pursuant thereto a full copy of the record of the superior court has been returned to this court. The defendant in error answered: (1) A general denial as to the allegations of the petition and the assignments of error therein; and also (2) a plea of ‘in nullo est erratum.’ Apparently the defendant in error has raised in truth no issue of fact and relies wholly upon the plea that the record shows no error, except so far as she relies also upon the contention that this court has no jurisdiction. Eliot v. McCormick, 141 Mass. 194, 6 N. E. 375;Perkins v. Bangs, 206 Mass. 408, 92 N. E. 623.

It is manifest from the transcript of the record of the superior court that the petition for the attachment of contempt was made and filed in the original cause and that the subsequent proceedings thereon were treated as a part of that cause. Cartwright's Case, 114 Mass. 230, 239.

The distinction has been made in other jurisdictions between civil and criminal contempts. It has been referred to in some of our decisions. The occasion has not arisen for this court to discuss that subject with critical analysis and painstaking care. New York Central Railroad v. Ayer, 251 Mass. --, 148 N. E. 567. We do not need to deal with that question in the case at bar. Reference simply is made to a few statements touching the existence of the distinction. In Michaelson v. United States, 266 U. S. 42, 64, 45 S. Ct. 18, 19 (69 L. Ed. 162, 35 A. L. R. 451), it was said:

‘The proceeding for criminal contempt, unlike that for civil contempt, is between the public and the defendant, is an independent proceeding at law, and no part of the original cause.’

It was said by Chief Justice Taft in Ex parte Grossman, 267 U. S. 87, 45 S. Ct. 332, 334, 69 L. Ed. 527:

‘It is not the fact of punishment but rather its character and purpose that makes the difference between the two kinds of contempts. For civil contempts, the punishment is remedial and for the benefit of the complainant, and a pardon cannot stop it. For criminal contempts the sentence is punitive in the public interest to vindicate the authority of the court and to deter other like derelictions.’ Bessette v. Conkey Co., 194 U. S. 324, 24 S. Ct. 665, 48 L. Ed. 997;Matter of Christensen Engineering Co., 194 U. S. 458, 24 S. Ct. 729, 48 L. Ed. 1072;Terminal Railroad Association of St. Louis v. United States, 266 U. S. 17, 27, 45 S. Ct. 5, 69 L. Ed. 150.

In Union Tool Co. v. Wilson, 259 U. S. 107, 110, 42 S. Ct. 427, 428 (66 L. Ed. 848), it was said:

‘Where a fine is imposed partly as compensation to the complainant and partly as punishment, the criminal feature of the order is dominant and fixes its character for purposes of review. In re Merchants' Stock & Grain Co., 223 U. S. 639 [32 S. Ct. 339, 56 L. Ed. 584].’

The circumstance that sentence of imprisonment is imposed does not of itself stamp the contempt as criminal in nature. The whole subject was examined at large in Gompers v. Buck's Stove & Range Co., 221 U. S. 418,31 S. Ct. 402,55 L. Ed. 797, 34 L. R. A. (N. S.) 874. It there was said at pages 442, 443 (31 S. Ct. 498):

‘If a defendant should refuse to pay alimony, or to surrender property ordered to be turned over to a receiver, or to make a conveyance required by a decree for specific performance, he could be committed until he complied with the order. Unless these were special elements of contumacy, the refusal to pay or to comply with the order is treated as being rather in resistance to the opposite party than in contempt of the court. The order for imprisonment in this class of cases, therefore, is not to vindicate the authority of the law, but is remedial and is intended to coerce the defendant to do the thing required by the order for the benefit of the complainant. If imprisoned, as aptly said in In re Nevitt, 117 F. 451 , ‘he carries the keys of his prison in his own pocket.’ He can end the sentence and discharge himself at any moment by doing what he had previously refused to do. * * * The distinction between refusing to do an act commanded, remedied by imprisonment until the party performs the required act, and doing an act forbidden, punished by imprisonment for a definite term, is sound in principle, and generally, if not universally, affords a test by which to determine the character of the punishment.'

[1] The order on the petition for contempt in the case at bar was this:

‘After hearing the respondent is adjudged in contempt and is ordered into custody of the sheriff, and the case is continued for sentence for two weeks from this day, viz. until the 12th day of December, A. D. 1924, at 4 o'clock in the afternoon, and it is ordered that unless in that period the said respondent purges himself of contempt by taking proper and efficient methods to open and set aside the decree which he has obtained in the district court of Nevada against the complainant in this action, an order is to be then entered committing said respondent to the custody of the sheriff of this county, until he shall have taken such proper and efficient methods to open and set aside said decree. In the meanwhile, he is to be admitted to bail in the sum of $2,500...