Appeal
from Circuit Court, Washington County; D. Lindley Sloan
Judge.
Proceeding
by the State's Attorney against Norman S. Bowles for
contempt of court. From order adjudging Norman S. Bowles
guilty of contempt of court, Norman S. Bowles appeals.
Judgment
affirmed, and case remanded for modification of sentence.
Argued
before BOND, C.J., and URNER, OFFUTT, DIGGES, and PARKE, JJ.
DIGGES
Judge.
This is
an appeal from an order of the circuit court for Washington
county, dated August 16, 1932, adjudging the appellant guilty
of contempt of that court. The contempt was found to be the
filing by the appellant in the circuit court for Washington
county of a paper entitled, "Motion and affidavit,"
in the following language: "Comes now the plaintiff
Norman S. Bowles, and moves the Court to certify the
above-entitled cause to another Judge other than the
Honorable Frank G. Wagaman, and for reasons says: That he
does not believe that he can obtain a fair and impartial
trial before the said Judge. Norman S. Bowles." The
affidavit attached to and accompanying the motion follows:
"District
of Columbia, ss: Norman S. Bowles, being duly sworn, on oath
deposes and says: That he is a citizen of the District of
Columbia and that the defendant Mathias P. Moller, is a
citizen of Hagerstown, Maryland; that said defendant is the
father-in-law of the son of the Honorable Frank G. Wagaman
and that the affiant believes that said son John Wagaman
will be one of the attorneys for the defendant at any trial
in this cause; that at a recent trial before the Honorable
Frank G. Wagaman, Equity No. 11,905, in which plaintiff
herein, M. P. Moller, the defendant herein and John Wagaman
the said son of Frank G. Wagaman were interested parties, the
said Judge stated in open Court that the filing of a petition
by the plaintiff herein was done for ulterior motives and
that during the hearing the plaintiff herein believes that
the said Judge Wagaman aided his said son in contesting the
plaintiff's right to intervene; that his belief was
confirmed by many members of the Hagerstown Bar (attorneys
practicing in Washington County) who so expressed themselves
to the affiant and it was the general belief as expressed by
many other persons to the plaintiff herein that the said
plaintiff could not obtain a fair and impartial trial in any
matter in which M. P. Moller and John Wagaman were interested
if said trial was presided over by the Honorable Frank G.
Wagaman. Norman S. Bowles. Subscribed and sworn to before me
this 5th day of May, 1932. Catherine P. Offutt, Notary
Public, D. C. [ N. P. Seal.]"
This
motion and affidavit were filed on May 27, 1932; whereupon
the following petition was filed in that court by the
state's attorney for the county, wherein it is stated:
"1st.
That one Norman S. Bowles filed on the 5th day of May,
1932, in No. 80 Appearances, May Term, 1932, in the Circuit
Court for Washington County, a certain motion and
affidavit, certified copy of which motion and affidavit is
attached hereto and made a part hereof, and marked
'Exhibit Motion and Affidavit.' 2nd. That said
motion and affidavit is deemed by your petitioner to
contain therein impertinent, scandalous, insulting and
contemptuous language reflecting on the integrity of said
Honorable Court, especially upon the Honorable Frank G.
Wagaman, one of the Judges of said Court. To the end
therefor: That this Honorable Court may pass an order upon
the said Norman S. Bowles requiring him to show cause, if
any he has, by a certain day to be named in said order why
he should not be held in contempt of Court."
Upon
this petition an order was passed by Hon. D. Lindley Sloan,
one of the judges of the said circuit court for Washington
county, in these words: "The aforegoing petition,
affidavit and exhibit having been read and considered, it is
thereupon this 26th day of May, A. D. 1932, by the Circuit
Court for Washington County, ordered that Norman S. Bowles,
within five days after a copy of the aforegoing petition,
affidavit and this order of Court have been served upon him,
answer said petition and show cause, if any he has, why he
should not be held in contempt of Court."
The
papers, including a copy of this order, were served upon the
appellant on July 2, 1932. On July 7th the appellant filed an
answer under oath to the show cause order, wherein it is
alleged: "That he never intended to be disrespectful to
the Court or to the Honorable Frank G. Wagaman; that he has
practiced law in the District of Columbia and in the Federal
Courts of the United States and that under the statutes in
the said District of Columbia and in the Federal Courts any
person attempting to disqualify a judge from sitting in any
case must file ten days before the beginning of the term of
Court at which the matter is to be heard a motion supported
by an affidavit setting forth facts, which if true, would be
sufficient to disqualify such judge; that respondent was
informed and therefore believes that it was the practice to
file a motion before any term of Court (in the State of
Maryland) so that the Clerk and the Judge might certify any
matter that would ordinarily be set for a hearing at such
term to another county or before another judge; that
respondent believed that he had to state facts which he
believed to be true in the form of an affidavit to support a
motion to disqualify; that every fact set forth in his
affidavit he believes to be true; first, John Wagaman is the
attorney of record in the matter; that the defendant is
related to the Honorable Frank G. Wagaman by marriage; that
four members of the Hagerstown bar (now in good standing and
among the leaders of said bar) voluntarily expressed to the
respondent
that the Honorable Frank G. Wagaman had aided his son and one
J. Lloyd Harshman in the conduct of Equity case No. 11,905
and that others present in the Court during the hearing of
said matter had also expressed the same opinion; that while
the said aid may have been unconsciously given as would be
only natural interest of a father for a young son, yet the
respondent honestly believes that he cannot have that fair
and impartial trial which the law of the State of Maryland
extends to all persons, in any matter in which M. P. Moller
and John Wagaman are interested parties; that as to the
statement made by the Honorable Frank G. Wagaman and set
forth in the respondent's affidavit, to wit: 'That
the filing of a petition by the plaintiff herein was done for
ulterior motives' respondent is ready and willing to
prove that such statement was made in open Court and the
respondent believed that same was not justified by any
evidence offered in court or by any conduct on the part of
the respondent or his joint petitioner; that further the
respondent herein accused the son of the Honorable Frank G.
Wagaman and the attorney filing the petition herein with
deliberately deceiving court in that these two attorneys
actually represented the plaintiff and the defendant in
Equity No. 11,905, filed every paper filed by either the said
plaintiff or the defendant, but they caused the papers filed
on behalf of the defendant therein to be signed by a young
attorney, one Samuel C. Strite, for the sole purpose of not
disclosing the true facts as to who was actually representing
the defendant; that these two attorneys John Wagaman and J.
Lloyd Harshman (State's attorney for Washington County)
filed on February 2nd, 1932, a bill of complaint for M. P.
Moller. Inc., and at the same time filed an answer for the
defendant, M. P. Moller Company, in the bill they appeared as
attorneys of record, but in the answer they used one Samuel
C. Strite; that on February 5th, 1932, they having been
appointed receivers, sold the entire assets of the defendant
corporation to the plaintiff, valued at about $130,000 for
$5,000 cash and two notes of the plaintiff corporation
amounting to about $36,000; that this action was approved by
the Honorable Frank G. Wagaman, although the said receivers
made no effort to obtain any other bid for the said assets
and made no effort to obtain the best price therefor. They
did not advertise the goods and in truth and in fact the said
receivers acted solely for the benefit and in the interest of
the plaintiff without regard for the interest of the
defendant or the interest of the petitioners who owned 25% of
the stock of the defendant, and the respondent asks that the
entire proceeding in the Equity case No. 11,905 be considered
in connection with this answer, and now therefore the
respondent says that the Honorable Frank G. Wagaman knew of
the charges made against his son and J. Lloyd Harshman and
against all the others interested in the case Equity No.
11,905 and he should not have sit in judgment especially
after the respondent herein who was one of the petitioners
therein made a motion to have the case certified to another
Court and to disqualify the said Honorable Frank G. Wagaman
from sitting in the case because of interest. And now lastly
the respondent says that the said Honorable Frank G. Wagaman
failed to protect the respondent in a case in which the
respondent was addressing the Court in that he allowed the
father-in-law of his son one M. P. Moller to call the
respondent a 'Liar' in open court and when the
respondent called upon the said Honorable Frank G. Wagaman to
cause the said M. P. Moller to apologize, refused to do
further than to say that the conduct of said M. P. Moller was
inexcusable, yet when the respondent ask that said M. P.
Moller be required to apologize or be held in contempt, the
Honorable...
