Ex parte Buskirk

• Decision Date: 04 February 1896
• Docket Number: 142.
• Parties: Ex parte BUSKIRK.
• Court: U.S. Court of Appeals — Fourth Circuit

72 F. 14

Ex parte BUSKIRK.

No. 142.

United States Court of Appeals, Fourth Circuit.

February 4, 1896

John A Hutchinson, for petitioner.

Maynard F. Stiles and E. L. Buttrick, for respondents.

Before GOFF and SIMONTON, Circuit Judges, and BRAWLEY, District Judge.

GOFF Circuit Judge.

Uriah B. Buskirk, the petitioner, was one of the defendants to an action of ejectment pending in the circuit court of the United States for the district of West Virginia, in which Henry C. King was plaintiff. The land in controversy was situated in the state of West Virginia, and it was claimed that Buskirk, with one Mullins, was in the possession of a part thereof. King, on the 31st day of May, 1895, tendered his bill on the equity side of the court, in which he charged that Buskirk and Mullins were preparing to cut and remove large quantities of timber from the land in controversy. The court, at Charleston, on the 31st day of May, 1895, ordered that the bill be filed, which was done, and it appears from the record that no further proceedings were had in said matter, of which an entry was made at the time on the court's records, until on the 12th day of June, 1895, at Charleston, when the following order was made, viz.:

'Henry C. King, Complainant, v. U. B. Buskirk et al., Defendants.

'This day came the complainant by his counsel, and presented the affidavit of Maynard F. Stiles, charging the said defendants with a violation of a stipulation heretofore made in this cause, and asked a rule against defendants. And the defendants, by counsel, presented their affidavit in reply thereto, and thereupon the said matter came on to be heard. Whereupon it is ordered that the said affidavits be filed and that the said matter be continued with leave to each party to file further affidavits, and for complainant, upon reasonable notice to defendants or their counsel, to renew his motion herein for said rule. And it is further ordered that in the event the complainant decides to renew his application for a rule to show cause why the defendants should not be fined and attached, that before doing so he serve the defendant or his counsel of record with eight days' notice of the time and place of the application.'

The next order made in said proceedings was on the 27th day of June, 1895, as follows, viz.'

'Henry C. King, Complainant, v. Uriah B. Buskirk and M. B. Mullins Defendants. In Equity.

'This cause came on to be heard upon the 20th day of June, 1895, by consent of counsel for the respective parties upon the application and motion of complainant made on the 12th day of June, 1895, for a rule against defendants to show cause why they should not be attached and fined for contempt in violating certain orders and decrees of this court made in this cause, which said order of June 12th is as follows.'

Here follows a copy of the order as given above. At the same time a large number of affidavits made by various parties, and having reference to the cutting of timber on said land by defendants, were tendered and filed. They thus became a part of the record, and were considered by the court below, but in the view that we take of this case it will not be necessary for us to again refer to them.

The defendant Buskirk, on the 27th day of June, 1895, appeared and filed his answer to the motion for a rule, which was in the following words, viz.:

'Plea and Motion of Defendant Buskirk.

'Henry C. King vs. M. B. Mullins et al. In Equity.

'The defendant U. B. Buskirk comes and says that this court ought not to take any further cognizance of the motion and proceedings for an alleged contempt against him upon the following grounds and for the reasons following: First. No order was ever made in said equity case by way of injunction or otherwise against this defendant, which he has in any wise violated. Second. The so-called 'stipulation' on which the affidavit of M. F. Stiles was filed in this cause against the defendant Buskirk was not in writing, never signed, and that the court never made any order thereon. No order exists of record in said cause in relation thereto. Third. The only evidence of any promise, agreement, or stipulation of the purport alleged in the affidavit of M. F. Stiles, filed in this cause, as a foundation for a rule against said Buskirk, is what was stated in open court, as said Buskirk understands, by his counsel and the counsel of the plaintiff, Henry C. King, as to which, and the scope and extent thereof, the said plaintiff's counsel, M. F. Stiles, and his agent, V. A. Wilder, disagree with the counsel of the said Buskirk himself, as shown by the written affidavits filed before this honorable court; so that in fact the basis of the proceedings against the said Buskirk is upon an oral proposition acceded to by all parties, which was never reduced to writing and signed, and depends upon the memory of the persons present at the time the said proposition was made and agreed to in court. Fourth. The proceedings against respondent herein upon said motion for a rule therefore depend, not upon a violation of any order of the court, but upon an alleged violation of a promise or understanding, never reduced to writing, between the parties by their counsel. Fifth. It is respectfully submitted that, in the absence of an order of the court in writing, which must exist as the basis of any action in the proceeding for contempt, it would be wholly unjust and contrary to the rules and practice of a court of equity and to the principles governing proceedings of a criminal nature in the courts of the United States to proceed further with the proceedings herein against the said Buskirk as if he were on trial for an alleged contempt of the orders of the court.

Sixth. It is respectfully objected that no order of injunction ever was in fact granted in said chancery cause; that, while there was a verbal understanding between the counsel before the court, there was in fact no order of injunction granted by the court. Seventh. In the absence of an order of injunction granted by the court, not of record in the cause, according to court's practice in such case, any action of the court so taken would not be a bar to any proper proceeding or any other proceeding which might be jurisdictional. Eighth. According to the law of the land there can be no such thing as a verbal decree or order of injunction as a part of the record of a court of chancery. Ninth. The affidavit filed by the said Buskirk fully and completely exonerates him from any alleged contempt even of any verbal order in said cause, and fully and distinctly explains each and every fact, circumstance, or thing tending to charge him with any violation of the alleged verbal order or understanding. Tenth. The said Buskirk respectfully moves the court to dismiss said proceedings upon the grounds alleged, and also for the reason that no rule has been issued and no issue has been made up, and no steps have been taken properly in the proceedings now pending against him according to the law of the land and the practice of this honorable court, and nothing done herein will be a bar to any future action the court might take according to the regular course.'

On the 28th day of June, 1895, the following order was made and entered of record, to-wit:

'In the Circuit Court of the United States for the District of West Virginia, at Charleston, June 3rd, 1895.

'Henry C. King vs. Uriah B. Buskirk and M. B. Mullins. In Equity.

'This day this cause came on to be heard upon the bill of complaint of the said complainant, filed by him on the 31st day of May, praying an injunction to restrain the defendants and each of them from cutting, hauling, selling, or in any manner trafficking in the timber upon the land claimed by the complainant and described in said bill of complaint. The counsel for both complainant and defendants being present in open court, and here agreeing and stipulating that the further hearing of this cause be had at Parkersburg on the 20th day of June, and that meanwhile the said defendants will cut no timber upon the lands described in said bill and the exhibit filed therewith and made part thereof, from the cutting of which the said complainant asks that they be restrained, it is ordered that this motion for an injunction be sent down for hearing at Parkersburg on the 20th of June, and in the meanwhile, and until the further order of this court, the defendants be inhibited and restrained from cutting any timber upon the land claimed by the complainant and set out in his said bill and the exhibit made a part thereof.'

This order was prepared on the 28th day of June, and then entered as a nunc pro tunc order. And on the same day, to wit, on the 28th day of June, 1895, the following order was made and entered of record, to wit:

'H. C. King vs. U. B. Buskirk and M. B. Mullins. In Equity.

'This day came the defendants, U. B. Buskirk and M. B. Mullins, and tendered their answer to the plaintiff's bill, and the same is ordered to be filed, to which the complainant replies generally.'

On the said 28th day of June the court below awarded the rule against Buskirk, to which he appeared and filed his answer on the same day, which was in substance to the same effect as the answer he had filed the day before to the motion for a rule, and which we do not deem it necessary to again set forth. And at another day, to wit, on the 29th day of June, 1895, the following order was made and entered of record in said cause, viz.' 'Henry C. King vs. Uriah B. Buskirk.

'Upon a rule to show cause why the defendant should not be fined and attached for his contempt in violating an order of injunction heretofore awarded in the cause of Henry C. King against Uriah B. Buskirk and M. B. Mullins. In Equity.

...