Commonwealth ex rel. Lieberum v. Lewis

• Decision Date: 20 March 1916
• Docket Number: 3108
• Citation: 98 A. 31,253 Pa. 175
• Parties: Commonwealth, ex rel., Lieberum, Appellant, v. Lewis
• Court: Pennsylvania Supreme Court

98 A. 31

253 Pa. 175

Commonwealth, ex rel., Lieberum, Appellant, v. Lewis

No. 3108

Supreme Court of Pennsylvania

March 20, 1916

Argued October 28, 1915

Habeas corpus, original jurisdiction, Miscellaneous Docket No. 192 in case of Commonwealth of Pennsylvania, ex rel., Christian Lieberum v. Edward Lewis, Warden of Allegheny County Jail.

Habeas corpus, original jurisdiction.

The opinion of the Supreme Court states the facts.

The relator is remanded to the county jail until the decree of court is complied with, or until the court below shall see fit to carry out its order in some other manner.

L. K Porter, S. G. Porter and Saul Schein, for relator.

Howard W. Douglass and J. Rodgers McCreery, contra.

Before BROWN, C.J., MESTREZAT, POTTER, MOSCHZISKER and FRAZER, JJ.

OPINION

MR. JUSTICE FRAZER:

A bill in equity was filed in 1912 by various persons against Christian Lieberum, the relator, asking for an injunction to restrain him from continuing to obstruct a certain right of way by maintaining thereon a building which he erected a number of years previous to the instituting of the proceedings. A decree was entered against Lieberum ordering him to remove the building on or before a certain time, and to replace the way in suitable condition for travel. This decree was affirmed on appeal to the Superior Court, in Schmidt v. Lieberum, 54 Pa.Super. 500. The relator refused to comply, whereupon an attachment was issued, and an order made adjudging him guilty of contempt of court, for which he was committed to the county jail until such time as he should purge himself of the contempt. Three writs of habeas corpus were subsequently issued by the lower court and each of them on hearing was dismissed, the prisoner still persisting in his refusal to obey the decree, without offering excuse for his conduct, or showing reason why he should not be punished for his open defiance. On October 28, 1915, a petition was presented to this court, and a writ issued to the warden of the jail requiring him to produce the relator before us, and, on October 29, 1915, a decree was entered directing his release from confinement on giving bail to await the further order of the court.

The first contention on part of relator is that the commitment to the county jail was insufficient, in that it failed to show the nature of the contempt for which he was committed. The order of the court recited in detail the entry of the original decree directing relator to remove his house; the fact that this decree was sustained by the Superior Court; the failure of relator to comply with its terms; the issuing and service of a rule of attachment; the fact that relator duly appeared before the court and refused in open court to comply with the decree; and the resulting order committing him for contempt. There can be no doubt that the decree in itself was sufficient to show the nature of the offense which formed the basis of the commitment. The transcript, however, which was presented to the warden of the prison contained merely the concluding order, omitting the recital of the facts on which the order was based. The petition presented to this court for a writ of habeas corpus sets out the fact that relator had been adjudged guilty of obstructing a road or right of way, and had been ordered to remove the obstruction, and was adjudged guilty of contempt and committed to jail for refusal to obey the decree of the court. Had the order of commitment contained nothing more than appeared on the transcript presented to the warden, there would be merit in relator's contention. But one who asks for a release from custody under a writ of habeas corpus must present a prima facie case entitling him to such relief, and he fails to do this where his own application, together with the commitment, shows a legal detention: Williamson's Case, 26 Pa. 9, 15; Commonwealth v. Bell, 145 Pa. 374. In the latter case it was said (page 386): "It is unnecessary to consider any technical objection to the sufficiency of the sheriff's return to the writ of habeas corpus, because, in his petition for the writ, the relator sets forth, inter alia, the fact that he was adjudged guilty of contempt of court in refusing to testify as a witness in the case above referred to; that for said offense he was sentenced by the court to pay a fine of two hundred dollars and undergo an imprisonment in the common jail of Lawrence County until the tenth day of March, 1891, 'and stand committed to the custody of the sheriff for the purpose of carrying this sentence into effect; by virtue of which your petitioner is now in the said common jail in custody of Samuel W. Bell, sheriff.'" The defect complained of in the present case is not in the order but a clerical error in making out the transcript to the warden of the county jail. Under the facts as presented, it appearing that the order itself was in proper form, and the petition showing on its face there were just grounds for making it, relator is not entitled to a release on such a mere technicality: Commonwealth v. Wright, 126 Pa. 464.

Relator further contends an attachment for contempt should not be sustained for the reason that other remedies are available, and further that the refusal to obey the order of the court is not a criminal contempt, but is in the nature of an execution process for the enforcement of a civil right, and, since the performance of the act was not to be done in the presence of the court, it was one which could be punished by fine only under the Act of June 16, 1836, P.L. 784, Section 24, which provides that "the punishment of imprisonment for contempt as aforesaid shall extend only to such contempts as shall be committed in open court and all other contempts shall be punished by fine only." With regard to the latter contention, Section 13 of the same act, as extended by the Act of February 14, 1857, P.L. 39, gives Courts of Common Pleas the jurisdiction and powers of a court of chancery in so far as relates, inter alia, to "the prevention or restraint of the commission or continuance of acts contrary to law and prejudicial to the interest of the community or the rights of individuals." While the Act of July 12, 1842, P.L. 339, abolishes imprisonment for debt, it expressly excepts from its provisions "proceedings as for contempt, to enforce civil remedies," etc., and provides that in such cases "the remedies shall remain as heretofore." This act did not affect the powers of a court of equity under the Act of 1836 to enforce its decrees by attachment if necessary: Chew's App., 44 Pa. 247. The only question, therefore, is whether the power of a court of equity to enforce its own decrees by attachment and imprisonment for contempt in event of refusal to obey, is restricted by Section 24 of the Act of 1836, limiting the power of imprisonment to contempts committed in open court.

Under the Act of 1836, it was said by this court in Scott v The Jailor, 1 Grant (Pa.) 237 (page 238): "The acts of assembly conferring chancery powers, carry with them, as a necessary incident to the jurisdiction, the authority to enforce decrees by the ordinary process of attachment, sequestration, &c., unless that authority be excluded by legislative enactment. The Act of June 16, 1836, regulating the power of the several courts of the Commonwealth to 'issue attachments, and inflict summary punishment for contempts of court,' has no relation to attachments to enforce decrees in equity, where the object is not to 'inflict punishment,' but to compel performance of such decrees." In Tome's App., 50 Pa. 285, it was held that the Orphans' Court had power to enforce by attachment a decree against an executor to pay and deliver over to his successors property in his hands belonging to the estate. It was there said (page 298); "The last objection is that the imprisonment here is unlimited, and therefore contrary to the provisions of the Act of 16th of June, 1836. But the restriction stated in the 23d Section is upon the power to inflict summary punishment by contempt of court. This is rendered still more clear by the 24th Section, which restricts the punishment of imprisonment for contempts to those committed in open court. Attachments to enforce civil remedies are plainly not within the enactment, for the reason that they are not used as punishment, but as the means of remedy: and for the reason that, if within the law, they are wholly abolished. The contempts which are punished by imprisonment are those only which are committed in open court, and, therefore, all such attachments that operate upon a party for nonperformance of a duty in pais, or which (as in all these cases) must be performed outside of the walls of the courtroom, necessarily cannot be executed by imprisonment. The power to detain the party in jail is gone, and he can be punished only with a fine, which fails of the very object of the writ as a remedy by way of enforcement." The relator, by his counsel, quotes the latter part of the above language as absolute authority to show he "was not guilty of what is known as contempt of court, but is charged with having refused to obey a decree of this court to abate a nuisance." If the language is considered as a whole the distinction made by the court between a proceeding to punish for contempt and one to enforce a civil remedy clearly appears; and relator's very statement of the case is an admission that it is within the latter class. He thus argues himself out of court. Another case in point is Commonwealth, ex rel., Lowry, v. Reed, 59 Pa. 425. That was an order on respondent to surrender a child in his possession to its guardian. He refused to obey the order and a rule for attachment was entered against him, and after hearing he still persisted in his...