Hanley v. Most
| Decision Date | 17 July 1941 |
| Docket Number | 28159. |
| Citation | 9 Wn.2d 474,115 P.2d 951 |
| Parties | HANELY v. MOST et al. |
| Court | Washington Supreme Court |
Action by Elizabeth H. Hanley against Joe E. Most and others, for injunction against disposing of community property and to set aside voting trust agreements. On order to show cause why defendants E. B. Hanley, Sr., and Joe E. Most should not be punished for contempt for violation of temporary injunction wherein plaintiff also sought that transfers between the defendants be set aside.
Decree in accordance with opinion.
Preston, Thorgrimson & Turner and Colvin & Rhodes all of Seattle, for appellant.
McMicken Rupp & Schweppe and J. Gordon Gose, all of Seattle, for respondent Most.
J. Speed Smith and E. B. Hanley, Jr., both of Seattle, for respondent E. B. Hanley, Sr.
Padden & Moriarty, of Seattle, for other respondents.
The petitioner, Elizabeth H. Hanley, brought an action seeking to enjoin her husband, E. B. Hanley, Sr., from giving away, or otherwise disposing of, any of the property of their marital community, and to enjoin certain other defendants, including Joe E. Most, from inducing Mr. Hanley, Sr., to commit any such acts; and, also, to set aside two voting trust agreements covering the stock in the Copper River Packing Company and the Pleasant Creek Mining Company.
This proceeding has the same title and number as the decision of this court on the merits as to the voting trust. It precedes this one and in it the facts are fully stated.
Upon filing the complaint, Mrs. Hanley the disposition of the property by Mr. the disposition of the property by Mr. Hanley, Sr., and also restraining the other defendants from further exercising any power under the voting trust agreements.
By stipulation of the parties, the temporary restraining order was continued, and converted into a temporary injunction as to Mr. Hanley, Sr., and Mr. Most, to remain in force until the further order of the court.
Some days after the court had announced its decision, the parties appeared Before the court for the purpose of having the amount of the appeal bond fixed. The court thereupon announced that it would be fixed at five thousand dollars, if the entire decree was appealed from; but, if only that portion which referred to giving gifts or transfers was appealed from, the bond would be in the sum of one thousand dollars.
At the time the decree was entered, Mrs. Hanley immediately gave notice of appeal and filed a supersedeas bond in the sum of one thousand dollars, to keep the temporary injunction in effect until the case was decided upon the appeal. Some days after the appeal was perfected, Mr. Hanley, Sr., contracted to sell to Mr. Most sufficient stock in the packing company to give Mr. Most the voting control, and also contracted to sell to him the stock in the mining company.
The temporary injunction contained this paragraph:
After learning of these contracts, Mrs. Hanley petitioned this court for an order to show cause why Mr. Hanley, Sr., and Mr. Most should not be punished for contempt for violation of the injunction, and asked also that the transfers be set aside in the injunction proceeding. The show cause order was issued, and the matter came on for hearing at the time the case on the merits was heard in this court upon appeal.
Prior to the hearing upon the appeal, Mr. Hanley filed what he called a 'Confession on Appeal,' and asked that the judgment appealed from as to him be reversed. As a result of that, no further effort was made to pursue the contempt proceeding as against him.
Mr. Most first contends that the injunctive order, properly construed, only covers the matter of gifts, and does not cover transfers. To support this contention, he relies upon the clerk's minute entry, which mentioned only gifts, a stipulation of counsel correcting an error therein, and upon the affidavit of one of his counsel as to what occurred when the parties came Before the court to have the amount of the bond fixed. This affidavit, on material matters, was controverted by the affidavit of Mrs. Hanley's counsel.
This court has held a number of times that matters occurring in the presence of the court must be shown by the court's certificate, and cannot be shown by affidavits; Loy v. Northern Pac. R. Co., 77 Wash. 25, 137 P. 446; State v. Brady, 138 Wash. 421, 244 P. 675; State v. Knapp, 194 Wash. 286, 287, 77 P.2d 985. The clerk's minutes cannot be used for the purpose of contradicting or impeaching the purpose of contradicting or impeaching the Hartson v. Dill, 151 Cal. 137, 90 P. 530. We see nothing in the stipulation of counsel that in any way would tend to modify the order of the court.
We now come to the question of whether the court's order as to transfers was violated by making the contracts mentioned. One of the contracts recites that Mr. Hanley, Sr., agrees to sell, and Mr. Most agrees to purchase, a specified number of the shares in the packing company.
The other contract contains similar language with reference to the stock of the mining company. In each of the contracts, it is provided that the stock shall be placed in escrow along with the contracts, and that the title to the stock shall not pass until it has been fully paid for. In each contract, there is a forfeiture provision in the event the contract is not carried out. As to whether these contracts should be construed as transfers, from their literal language, there may be some question, but what was done in the way of making the purchases is against the spirit of the court's order.
In the case of Blakiston v. Osgood Panel & Veneer Co., 173 Wash. 435, 23 P.2d 397, 398, it was said: The next question is whether, in this proceeding, the contract should be set aside because of disobedience to the injunctive order.
It is a general rule, supported by the weight of authority, that, where, upon a hearing of the cause, it appears that the injunction should never have been granted to the person complaining of its violation, he has not been injured, and is not entitled to have the transaction set aside in a contempt proceeding, although this is to be taken into consideration in fixing the degree of the punishment.
In the case of Deeds v. Gilmer, 162 Va. 157, 174 S.E. 37, 79, the court, after pointing out that, in appropriate cases, the violator may be punished by forcing him to maintain the status quo as it existed Before the violation, said:
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Stafford v. Field, 7585
...therefore, could not thus be added to, changed, altered or impeached. Campbell v. Nunn, 78 Utah 316, 2 P.2d 899; Hanley v. Most, 9 Wash.2d 474, 115 P.2d 951 at 952, 118 P.2d 946; Bryer v. American Surety Co. of New York, 285 Mass. 336, 189 N.E. 109; State ex rel. Gregory v. Henderson, 230 M......
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Mortimer v. Pacific States Sav. & Loan Co.
... ... supersede the minute order entered by the clerk. State v ... Bell, 34 Wash. 185, 75 P. 641; Hanley v. Most, ... 9 Wash.2d 429, 115 P.2d 951, 118 P.2d 946; ... [145 P.2d 736] Gould ... v. Austin, 52 Wash. 457, 100 P. 1029, 1030. In the above ... ...
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Signal Oil & Gas Co. v. Ashland Oil & Refining Co.
...preliminary injunction is to declare invalid the actions taken at the December 16 meeting. Appellants, in reliance upon Hanley v. Most (1941), 9 Wash.2d 474, 115 P.2d 951, 118 P.2d 946, and Deeds v. Gilmer (1934), 162 Va. 157, 174 S.E. 37, 79, urge that the actions taken at the December 16 ......