Emerson v. Huss

• Decision Date: 23 February 1906
• Citation: 106 N.W. 518,127 Wis. 215
• Parties: EMERSON ET AL. v. HUSS.
• Court: Wisconsin Supreme Court

127 Wis. 215

106 N.W. 518

EMERSON ET AL.

v.HUSS.

Supreme Court of Wisconsin.

Feb. 23, 1906.

Appeal from Circuit Court, Price County; John K. Parish, Judge.

Action by John W. Emerson and another against J. E. Huss. From so much of an order entered September 7, 1904, as imposed a fine on defendant for contempt and ordering his imprisonment in default of payment, and his appearance before the court on a later day, and from the whole of a subsequent order granting practically the same relief, defendant appeals. Reversed.

On August 17, 1903, an action was commenced in justice court in Price county, and on August 24, 1903, judgment was rendered against the defendant. Thereafter a transcript of the judgment was duly filed in the office of the clerk of the circuit court for Price county. Execution issued and on December 23, 1903, was returned unsatisfied. One of the plaintiffs having died after the rendition of the judgment, the circuit court upon proceedings, made an order reviving the action in the names of the proper parties. Thereafter the county judge of Price county, exercising the powers of court commissioner, made an order requiring the defendant in the action to appear at his office on August 16, 1904, to answer on oath concerning his property, and to perform such acts as the court might deem proper to enforce the rights of the parties to the action. The defendant failed to appear as ordered, and on September 5, 1904, the county judge, as court commissioner of the circuit court for Price county, made an order requiring the defendant to show cause on September 7, 1904, at a special term of the circuit court for Price county, to be held at the courthouse in the city of Medford, Taylor county--this term was also a general term of the Taylor county circuit court--why he should not be punished as for a contempt for his misconduct in refusing and neglecting to appear and answer as ordered. Defendant failed to appear and the court made the following order: “An order dated the 5th day of September, A. D. 1904, having been granted against the above-named defendant, requiring him to show cause on the 7th day of September, 1904, at this term, why he should not be punished, for contempt for his alleged misconduct in refusing and neglecting to appear before Hon. E. W. Murray, pursuant to an order duly served on him and answer on oath concerning his property and to abide and perfrom such further and other order as by him made in the premises, and said J. E. Huss, defendant having failed to appear before the court on date, and after hearing J. W. Hicks, attorney for the plaintiffs, and examination of the record and proceedings before the county judge of Price county herein, and the affidavit of J. W. Hicks, attorney for the plaintiffs, and being advised in the premises, and the court having decided that defendant ought to appear and answer under oath touching his property and to abide by and perform such other and further order of the said county judge as shall be made in the premises.” On motion of J. W. Hicks, attorney for the plaintiffs it is “ordered that said J. E. Huss do appear before the said E. W. Murray on the 17th day of September, 1904, at 2 o'clock p. m., at his office in the city of Phillips, and there make answer under oath touching his property; that there is hereby imposed upon said J. E. Huss a fine of $10, and the sum of $15 as costs of this proceeding, which said sums shall be paid on or before the 17th day of September, 1904; that in default of said payment and said appearance the said J. E. Huss shall from and after the said 17th day of September, 1904, stand committed to the county jail of Price county until the terms of the above order shall have been complied with. Dated this 7th day of September, 1904.”

On September 19, 1904, defendant obtained an order from the circuit court for Price county, requiring plaintiffs to show cause on October 1, 1904, at a special term thereof--this being a general term of the Ashland county circuit court--to be held in the courthouse in the city of Ashland, why the order of September 7, 1904, should not be vacated and set aside. Proceedings to enforce the order of September 7, 1904, were also ordered stayed. On September 22, 1904, defendant was ordered by a court commissioner of the circuit court for Price county to show cause on September 24, 1904, at a special term of the Price county circuit court, at the courthouse in the city of Ashland, why the order of September 7th should not be enforced, and why the order of September 19th staying the proceedings, should not be vacated, and why the plaintiffs should not recover their costs. The court ordered the two orders to show cause to be taken up together, and they were so heard. On November 28, 1904, the court made the following order:

“At a special term of said court, held in the courthouse in the city of Ashland, Ashland county, Wis., on the 24th day of September, A. D. 1904. Present: Hon. John K. Parish. The motion of the defendant to set aside the order of this court dated September 7, 1904, vacating and holding for naught said order imposing a fine of $10 upon and requiring the defendant to pay $15 costs of said motion, and the order to show cause issued to the plaintiff, by G. D. Myers, court commissioner for Price county, Wis., on the 22nd day of September, 1904, ordering the defendant to show cause before the court why the defendant should not pay the sum of $10 fine and $15 costs of proceeding as commanded by order of this court dated September 7, 1904, and why the order dated September 19th staying proceedings herein to enforce said order of September 7th should not be vacated and set aside; and why the plaintiffs should not recover their costs of this proceeding; and why the defendant should not be further punished for his failure to comply with the terms of said order of September 7, 1904, by order of the court, came on to be heard before the court on the said 24th day of September, 1904, and J. W. Hicks, attorney for the plaintiffs, appearing and made argument in support of the contentions of the plaintiffs, and G. E. Schwint, attorney for the defendant, appeared and made argument in support of the contentions of the defendant, and the attorneys for the respective parties thereafter submitted their briefs in the matter, and the court having duly considered all points involved, and being advised in the matter, finds as follows:

Findings of Fact.

That the defendant, J. E. Huss, is guilty of contempt in having failed and refused to appear before the Hon. E. W. Murray, on the 16th day of August, A. D. 1904, pursuant to an order of said E. W. Murray, dated on the 12th day of August, A. D. 1904, and duly served on the said J. E. Huss, as shown by proofs now on file herein, and there make answer under oath touching his property. That plaintiffs have suffered damages in the sum of $10 by the said failure of the said J. E. Huss to appear before the said E. W. Murray on the 16th day of August, 1904, and make answer under oath touching his said property. That the defendant J. E. Huss, ought to appear before the said E. W. Murray, pursuant to order of this court, or order of said E. W. Murray, and there make answer under oath touching his property, and abide and perform such other and further order as shall be made herein. And it is hereby ordered, that said order of September 7, 1904, be and the same is hereby modified so that it shall be and read as follows: Ordered, that within 10 days from the date of service of notice of entry of this order on the defendant, J. E. Huss, he shall pay to J. W. Hicks, attorney for the plaintiffs, the sum of $25, being $10, in their damages suffered by the failure of the said J. E. Huss to appear before the said E. W. Murray on the 16th day or August, 1904, and there make answer under oath touching his property, and $15, costs of the proceedings herein, dated on the 7th day of September, 1904. Further ordered, that the order herein, staying proceedings to enforce the said order of September 7th be, and the same is hereby vacated and set aside, and that the motion of the defendant herein to set aside the said order of September 7, 1904, is denied. Further ordered, that the said J. E. Huss shall on two days' notice, personally served on him by J. W. Hicks, attorney for the plaintiffs, and without further order or process, appear before the said E. W. Murray, county judge for Price county, and there make answer under oath touching his property, and that he do further perform and abide such order as shall be made herein. Further ordered, that if the defendant, J. E. Huss fails to pay the said sum of $25 as herein ordered, within 10 days from the date of service of entry of this order, the said J. E. Huss be imprisoned in the common jail of such county until the same be paid, not to exceed 60 days, or until further order of the court. Dated November 28, 1904.”

This is an appeal from so much of the order of September 7, 1904, as imposes a fine upon defendant and orders his imprisonment in default of payment and his appearance before the court on September 17, 1904, and from the whole of the order of November 28, 1904.

G. E. Schwindt, for appellant.

J. W. Hicks, for respondents.

SIEBECKER, J. (after stating the facts).

The proceedings upon which errors are assigned were instituted, under chapter 150, Rev. St. 1898, to punish the defendant as for a contempt for his neglect, or violation of duty, or misconduct, through which the rights and remedies of the judgment creditors in the action against him are alleged to have been impeded and prejudiced. The facts and circumstances of the alleged misconduct are set forth in the foregoing statement of facts. The course of the proceedings throughout the many different terms of the circuit court is not clearly presented in all particulars, but it appears sufficiently clear that the action was instituted against defendant in...