Galligan v. United States

• Decision Date: 13 April 1922
• Docket Number: 2914,2918.
• Citation: 282 F. 606
• Parties: GALLIGAN v. UNITED STATES. DONOGHUE v. SAME.
• Court: U.S. Court of Appeals — Seventh Circuit

282 F. 606

GALLIGAN v. UNITED STATES. DONOGHUE v. SAME.

Nos. 2914, 2918.

United States Court of Appeals, Seventh Circuit.

April 13, 1922

Benjamin P. Epstein, of Chicago, Ill., for plaintiffs in error.

C. W Middlekauff, of Chicago, Ill., for the United States.

Before BAKER, ALSCHULER, and EVANS, Circuit Judges.

EVAN A EVANS, Circuit Judge.

The two above-entitled writs of error were submitted together and will be disposed of in one opinion.

Plaintiff in error in No. 2914 was adjudged guilty of contempt of court and given a jail sentence, while like punishment was pronounced against William F. Donoghue, plaintiff in error in No. 2918. The proceedings are founded upon the same injunctional order, which was issued in an equity suit brought under and by virtue of title 2, Secs. 2224, of the National Prohibition Act (41 Stat. 314, 315). In that equity suit the United States was complainant, and Jack Galligan alias Tony Serrtello, and John Doe were defendants.

It is unnecessary to take up the numerous assignments of error in No. 2918, for the reason that one of them, going to the merits of the case, must be sustained. In other words plaintiff in error Donoghue asserts that he had no knowledge of the existence of the restraining order which it is claimed he violated. Our examination of the testimony convinces us that he is correct in the statement that the record is barren of any proof showing or tending to show that he had knowledge of this order. He was not a party to the suit. The order was not served upon him, nor do we find any evidence that would support a finding that he knew of its existence, much less of its terms. Under these circumstances he cannot be found guilty of contempt. McCauley v. First Trust & Savings Bank (C.C.A.) 276 F. 117; Garrigan v. U.S., 163 F. 16, 89 C.C.A. 494, 23 L.R.A. (N.S.) 1295.

In No. 2914 the affidavit or complaint in the contempt proceedings is insufficient in various respects, and fails to meet the requirements prescribed by the Supreme Court in Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 31 Sup.Ct. 492, 55 L.Ed. 797, 34 L.R.A. (N.S.) 874. After charging the issuance of a restraining order in an equity proceeding wherein Jack Galligan was defendant, the affiant or petitioner says:

'Affiant further states that on December 8, 1920, he visited the place of business of the defendant herein at 61 West Harrison street, and there saw that liquor was being sold to customers, who were consuming the same, and that there was, on the premises and in the possession of the said defendant, certain intoxicating liquor, consisting of six quarts of bottled whisky and three pints of bottled whisky, also a quantity of beer, all of said liquor containing more than one-half of 1 per cent. Affiant further states that he has been informed that the aforesaid defendant has made a sale and transfer of all the property situated on the premises at 61 West Harrison street on December 4th, which date

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