Hallam v. Alpha Coal Corp.

• Decision Date: 22 June 1940
• Docket Number: 9033.
• Parties: HALLAM et al. v. ALPHA COAL CORPORATION.
• Court: West Virginia Supreme Court

9 S.E.2d 818

122 W.Va. 454

HALLAM et al. v. ALPHA COAL CORPORATION.

No. 9033.

Supreme Court of Appeals of West Virginia.

June 22, 1940

Syllabus by the Court.

A special receiver and an attorney at law employed to represent him were both "officers of the court" wherein the receivership proceeding was pending, within meaning of the statute granting jurisdiction to courts to punish summarily for contempt in certain named instances. Code 1931 61-5-26.

A fine imposed for contempt of court must be in a fixed amount in view of the constitutional requirement that a fine must not be excessive, since a fine must be for a definite amount otherwise there would be no way to prevent the imposition of excessive fines. Const. art. 3, § 5.

Fines for contempt were payable to the state. Const. art. 3, § 5.

A chancery court has jurisdiction of civil contempt committed therein, but a criminal contempt proceeding, whether or not the contempt was committed in a chancery court, should be docketed and heard on the law side of the court, though the entry of a punitive order on the chancery side is not reversible error.

1. A special receiver and an attorney at law employed to represent him are both officers of the court wherein the receivership proceeding is pending within the meaning of Code, 61-5-26.

2. A fine imposed for contempt of court must be in a fixed amount.

3. A fine, as such, is payable to the state.

4. A chancery court has jurisdiction of civil contempt committed therein; but in respect of a proceeding to punish for a criminal contempt, whether or not committed in a chancery cause, the matter should be docketed and heard on the law side of the court. But the entry of a punitive order on the chancery side is not reversible error.

L T. Eddy and M. Earl Morgan, both of Fairmont, for plaintiffs in error.

Showalter & Boggess, of Fairmont, for A. L. Minard and sixty-eight other labor employees of Alpha Coal Co.

KENNA Judge.

This is a summary proceeding for contempt ancillary to a chancery cause styled John B. Hallam against Alpha Coal Company and others, in which the complainant was appointed special operating receiver for the defendant coal company, and employed contemnor, A. Blake Billingslea, as his attorney.

The ground upon which the charge rested was deliberately misleading the trial chancellor with respect to receivership funds, the material facts being the following:

The receiver, also a contemnor, was allowed two hundred dollars a month salary, and on January 20, 1938, Billingslea was allowed five hundred dollars on account for services as the attorney for the receiver, and an order was entered directing the receiver to make payment.

The cause was referred to a commissioner in chancery for the purpose of reporting the amounts and priorities of the defendant company's assets and liabilities, and after the incoming of the commissioner's report on the tenth of November, on December 21, 1938, upon motion of the receiver, an order was entered directing Billingslea to pay, on or before December 31st, ten hundred eighty dollars thirty-seven cents to the receiver in settlement of two payments that Vanderbilt Coal Company had made to him for the receiver, one of four hundred twenty-five dollars and the other of six hundred fifty-five dollars thirty-seven cents. On December 31st, Billingslea having failed to appear, the receiver filed a written petition alleging Billingslea's non-compliance with the court's former order and praying that he might be held to answer. A rule in contempt was issued returnable January 18th, and on that day, Billingslea filed his verified answer which the court took time to consider.

The answer admits the receipt by Billingslea of the two payments aggregating ten hundred eighty dollars thirty-seven cents as attorney for the receiver, goes on to allege that Billingslea is entitled to five hundred dollars credit by virtue of the allowance formerly made by the court and, in addition, is entitled to credit for certain minor disbursements made for and on behalf of the receiver, and concludes by the averment that he that day has

paid to the receiver the entire sum of ten hundred eighty dollars thirty-seven cents, for which the receiver's receipt is exhibited with his answer. The answer alleges that Billingslea believed in good faith that out of the monies coming into his hands he was entitled to be paid the sum disbursed by him on behalf of the receiver, together with the sum allowed him as compensation for his services as attorney for the receiver, and that he had been diligently undertaking to raise the additional money necessary to make the payment of ten hundred eighty dollars thirty-seven cents directed by the court's order entered December 31, 1938, which he had been unable to procure before the day upon which the answer was tendered. The receiver's receipt acknowledges the payment of ten hundred eighty dollars thirty-seven cents as having been that day made by Billingslea. It will be noted that while Billingslea's answer apparently seeks to have credited certain sums disbursed by him for the receiver and allowed by the trial court to him as the receiver's attorney, it also avers that the total sum has been that day paid to the receiver by him and files the receiver's receipt therefor, and it further alleges that due to the lack of funds Billingslea has been unable theretofore to comply with the court's order of December 31, 1938.

The trial chancellor, on the return day of the rule and after Billingslea's answer had been filed, examined both Hallam and Billingslea, and they both admitted that the answer was incorrect because it had been drafted in anticipation of a substantial payment that the receiver had never gotten. Thereupon, they were both sentenced to the Marion County jail to serve ten days, and Billingslea to serve until a three hundred fifty dollar payment had been made to the receiver in compliance with the allegations of his answer, and, in addition, the order provided that both of them forfeit all allowances, fees, expenses and commissions theretofore or which could or might thereafter be allowed for services or expenses as receiver and attorney. Both contemnors were sentenced for falsifying in response to the court's inquiry concerning payment by Billingslea to Hallam. This appeal was granted upon their petition.

The questions of law which arise upon this record are the following:

(1) Did the circumstances justify the summary contempt proceeding, or do they require an indictment and trial by jury?

(2) Did the trial chancellor have power to order The forfeiture of allowances, fees, expenses and commissions, the total amount of which was not ascertained, and the finality of the court's order making allowances to each of a material sum of them having already been fixed?

(3) Does a contempt proceeding properly lie upon the chancery side of a circuit court?

Code, 61-5-26, grants courts jurisdiction to punish summarily for contempt in certain named instances, and forbids it in all instances not falling within the express enumeration. Subsection (c) refers to, as omitted from the inhibitions, contempt proceedings for misbehavior of an officer of the court in his official character.

Attorneys at law and counsellors are all to be classified as officers of the courts in which they are entitled to practice law, their primary duty being to render sound assistance in arriving at just determinations. Service to their clients is to be subordinated and subjected to a proper course of conduct in the performance and full realization of their primary and indispensable duty. Langen v. Borkowski, 188 Wis. 277, 206 N.W. 181, 43 A.L.R. 622, 636. While this is a theory often lost sight of, it should be very evident that the attorney for a special receiver who, as the representative of the court, has the custody and control of property in custodia legis is without doubt an officer of the court which has assumed jurisdiction over that property. Kneisel v. Ursus Motor Co., 238 Ill.App. 50. We therefore conclude that this proceeding, being based upon the misbehavior of a receiver and his attorney, was properly summarily dealt with.

The forfeiture of allowances, commissions, expenses and fees in an unascertained amount, including allowances awarded by decrees that had then become final, we believe to have been clearly erroneous. Fines and jail sentences both can be imposed for contempt. It is, however, like every other punishment which may be imposed upon an individual; the maximum must be clearly defined and the person involved fully informed. Excessive fines being prohibited, Const., Art. III, Sec. 5, it follows that a fine, including a fine for contempt, must be for a definite amount. Otherwise, there is no way to prevent the imposition of excessive fines. We therefore believe that the part of the trial chancellor's order declaring a forfeiture exceeded his jurisdiction, and while not affecting the sentence of imprisonment, the order to that extent was and is a nullity.

Another question that arises upon this record, but due to the...