Ex parte Gilliland

• Decision Date: 06 June 1938
• Docket Number: No. 73.,73.
• Citation: 284 Mich. 604,280 N.W. 63
• Parties: Ex parte GILLILAND.
• Court: Michigan Supreme Court

284 Mich. 604

280 N.W. 63

Ex parte GILLILAND.

No. 73.

Supreme Court of Michigan.

June 6, 1938.

Certiorari to Circuit Court, Ingham County, in Chancery; Leland W. Carr, Judge.

Proceeding in the matter of Clayton C. Gilliland. On petition for writs of certiorari and habeas corpus.

Writs dismissed.

Argued before the Entire Bench.

Albert McClatchey, of Detroit, for petitioner.

Raymond W. Starr, Edmund E. Shepherd, and George H. Heideman, all of Lansing, amici curiae.

BUTZEL, Justice.

Respondent, who is petitioner for writ of certiorari, was found guilty of two charges of contempt of court and sentenced to serve 30 days in jail for each offense, the sentences, however, to run concurrently. Respondent was employed as an investigator by a committee representing a large number of the members of the Lapeer Farmers Mutual Fire Insurance Association, an alleged insolvent association and in the hands of a receiver. A hearing of its affairs was in progress before the Honorable Leland W. Carr of the Ingham Circuit Court. The respondent was attending the hearing for the purpose of assisting the members whose committee had employed him and giving their attorney such information as would be helpful. He sat at the counsel table with the attorney representing his employers and made suggestions to him. When reprimanded by the judge, he took a seat farther back in the court room and from there sent written memoranda to the attorney.

Respondent was brought into court on a single charge of uttering contemptuous and derogatory remarks regarding the action of the court. The order to show cause was accompanied by the affidavit of Chauncy Wyman, a deputy sheriff, who deposed therein that while on a public thoroughfare in the city of Lansing, respondent met him and said: ‘This case is all one-sided. Judge Carr is upholding these officers of the insurance company and also upholding them when he knows they are wrong, he is not giving us a ghost of a show at all. He is trying to put us in the mire.’ According to the affidavit, respondent further stated to Wyman on the following day: ‘The judge is all for the other side, and he is going to give us nothing. The judge is delaying this case as much as possible by showing other cases in between.’ Defendant denied making these remarks. As a witness at the hearing, Wyman somewhat modified the force of the words in the affidavit and referring to respondent testified:

‘A. Well, he asked-the first thing he said was, what I thought of the case.

‘Q. What case was that? A. The Mutual Fire Insurance case, Lapeer Farmers' Mutual Fire Insurance case, and I told him I had not paid much attention to it. He made the remark that it was about as crooked a case as he ever heard. And I said, ‘In what way?’ ‘Well,’ he said-‘they were all one-sided,’ he said, ‘the judge stuck up for the other side of it all the way through,’ and he said, ‘he has not given us any show at all.’ And I made the remark that I did not think the judge was that kind of a man, and furthermore I said that he better be kind of careful what he was talking about.

‘Q. You say the judge-do you know what judge he was referring to? A. Yes, sir.

‘Q. What judge was that? A. Judge Carr.

‘Q. Did you have a further conversation with the man the next day? A. On the 29th, yes.

‘Q. What was that conversation? A. The conversation took place at the drinking fountain by the elevator.

‘Q. Right here in the courthouse? A. Yes. And he came up to me at first and he asked me if I knew where Mr. Leibrand was, and the rest of the people. And I said to him, I said, ‘Your case was not to be taken up until one o'clock this afternoon, as I understand.’ ‘Well,’ he said, ‘we did not hear anything about it all.’ He said, ‘We are all here and waiting to proceed with the case.’ ‘Well,’ I said, ‘The judge has had other cases this morning,’ and he said, ‘Well, that is the way of it.’ He said, ‘The judge has always shoved in other cases and puts us to one side.’ He said, ‘We are not having any show at all.’ And I said, ‘Well, the jury trials are on,’ or something like that, and he said, ‘Well, it is a crooked deal all the way through.’ He said, ‘They are all crooked,’ and he says--

‘Q. To whom did he refer, do you know, when he said that? A. I supposed he referred to the court. * * *

‘Q. Not what you supposed, do you know? A. Well, yes, I know.

‘Q. To whom did he refer? A. He referred from the judge down.

‘Q. Whom do you mean by down? A. The judge and the rest of the attorneys, the State attorneys and so on down.

‘Q. Was there any conversation as to whether the judge was delaying the case or not? A. Yes, he said that the judge was delaying the case by shoving in the other cases.

‘Q. In this conversation on the 28th, was there any conversation about somebody being shoved in the mire? A. He said that they were trying to shove-he said, ‘They are trying to shove us in the mire.’

‘Q. To whom did he refer, who was being shoved? A. Well, I took it from his conversation that he meant their side, the side that he was representing.’

An elevator operator testified that he overheard respondent make the remarks to the officer: ‘Mr. Gilliland, he made the remark that sounded to me like this, ‘Well, a fellow don't get justice any more, from the judge down.’'

The judge found respondent guilty of making contemptuous remarks.

The case comes to us on certiorari and we review questions of law and determine only whether there was evidence of any facts which justify the findings of the trial judge.

It is claimed that the proceedings were null and void because the basic affidavit, the order to show cause and the answer thereto and the transcript of testimony were entitled ‘In Chancery.’ They are entitled? ‘State of Michigan, In the Circuit Court for the County of Ingham, In Chancery. Contempt Proceedings against C. C. Gilliland, whose first name is not known but his person is well known.’ Respondent raised no formal objections below to the jurisdiction of the court. He filed a complete answer to the allegation made in the affidavits. He made no motion to quash because the order had issued out of the chancery side of the court. Counsel contends that a punitive sentence, appropriate only in proceedings had at law for criminal contempts, may not be imposed in a chancery proceeding. Counsel relies upon the case of Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797, 34 L.R.A., N.S., 874, where the Supreme Court held that a sentence for criminal contempt could not be imposed in a civil proceeding The entitling, as quoted in the instant case, shows that the contempt proceeding was not a part of the original civil cause involving the alleged insolvent company, but was an independent proceeding. The court in the Gompers Case, supra, stated that the entitling of the proceedings would have been proper if it had been ‘In re Gompers.’ Section 13910, 3 C.L.1929, 20 Mich.Stat.Anno. § 27.511 provides that all courts of record have power to punish for contempt. In People v. Yarowsky, 236 Mich. 169, 210 N.W. 246, we quoted with approval from Middlebrook v. State, 43 Conn. 257, 21 Am.Rep. 650, to the effect that courts in chancery and probate courts, although they have no criminal jurisdiction, yet have power to punish for contempt. The court had jurisdiction to try respondent for contempt and he points to no instance where the court departed from the form of procedure proper to the trial of the first charge.

It is claimed that there is a fatal variance between the words set forth in the affidavit and the testimony of the deputy. While the testimony somewhat modified the accusations in the affidavit, there is not such a fatal variance as would constitute reversible error in the absence of a showing of prejudice. See Bolibrzuch v. Gaffke, 251 Mich. 92, 230 N.W. 922. Respondent was fully apprized of the charge made against him on this count.

The remaining question in regard to the first...