Heasley v. United States
| Decision Date | 16 January 1963 |
| Docket Number | No. 17076.,17076. |
| Citation | 312 F.2d 641 |
| Parties | Fay HEASLEY, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Leo J. Beauclair, of Lyons & Beauclair, Valley City, N. D., for appellant.
John O. Garaas, U. S. Atty., Fargo, N. D., for appellee.
Before JOHNSEN, Chief Judge, and MATTHES and RIDGE, Circuit Judges.
Appellant, having been sentenced to eighteen months' imprisonment for criminal contempt, prosecutes this appeal claiming his judgment and sentence are illegal and void because — (1) the temporary injunction which he violated was no longer in full force and effect and therefore he was improperly adjudged to be in contempt of a null and void order of the District Court; (2) his eighteen months' sentence is excessive and unusual and should be materially reduced; (3) the District Court presiding Judge was prejudiced against him and should have disqualified himself, and (4) the State of North Dakota improperly joined with the United States Government "to eject appellant from the farm land" hereinafter mentioned. Since we deem appellant's first point well taken and as compelling our reversal of the District Court's order here on appeal, we pretermit any ruling on his other assignments of error.
The factual background leading up to appellant's conviction and sentence, tersely stated, is as follows. On May 22, 1958, the United States commenced an action against appellant and others, in the United States District Court for the District of North Dakota, to foreclose federal income tax liens on all real and personal property owned by appellant and for the appointment of a receiver to take charge and custody thereof. In due course a receiver was appointed for that purpose. On March 6, 1959, the District Court, by memorandum opinion published at 170 F.Supp. 738, directed that judgment be entered adjudicating and impressing the Government's tax lien in the sum of $198,198.92 on specifically described real estate and personal property owned by appellant; adjudging the rights and interests therein of those joined as defendants in the action; and ruling that the Government was entitled to have appellant's real property sold by its receiver and the proceeds therefrom applied first toward satisfaction of appellant's outstanding income tax liabilities, and the balance to be otherwise distributed. Appellant's appeal from that judgment was dismissed by this Court for want of prosecution. Heasley v. United States, 272 F.2d 947.
In conformity with the above-mentioned judgment the District Court's receiver sold appellant's real estate. On March 24, 1960, an order was entered confirming such sale to Arvel Glinz and Marjorie Glinz, husband and wife, for a total consideration of $225,300.00, payable $45,300.00 in cash and the balance to be paid in installments over a period of five years, the unpaid balance to be evidenced by promissory note payable to the Government and appellant and secured by mortgage on said real estate.
April 8, 1960, an Amended Order of Confirmation was entered by the District Court, adjudicating among other things that the proceeds derived from the receiver's sale be applied first to satisfy the costs of administration; secondly, to the payment in full of the Government's tax lien, and, thirdly, the balance thereof be paid to appellant. By another order of the same date the District Court released certain personal property belonging to defendant from the force and effect of the Government's lien for income taxes. On the same date (April 8, 1960), an "Amended Order Confirming Sale" was entered by the District Court by which the Receiver was ordered to deliver to the Glinzes "a deed conveying and transferring to" them title to "the real property sold." In that order the "defendants" (including appellant) were directed "to deliver possession of the — real property to the" — Glinzes; that the Glinzes were "the owners absolute in fee simple title of (such) real estate" — and "that none of the defendants named in (that) action (had) any estate or interest in, or lien or encumbrance (thereon) — and each and every one of them (were thereby) enjoined and forever debarred from further asserting" any such interest. The Glinzes were accordingly put into possession of said real estate. Three appeals perfected to this Court from the above amended orders were with finality adjudicated and determined on October 24, 1960, by our opinion to be found at 283 F.2d 422.
During the pendency of the last-mentioned appeals the Government, on August 5, 1960, filed a verified complaint in the District Court, seeking ancillary injunctive relief against appellant and others named as defendants in the tax-lien-receivership proceedings "pending the determination of the appeals" ante, and to enjoin them "from conveying or attempting to convey any of the realty" in question "or in any manner whatsoever, attempting or threatening to take possession of said realty or to dispossess the purchasers thereof; from trespassing upon said realty and from interfering in any manner whatsoever with the peaceful possession of said realty by" the Glinzes "or with their farming operations."1 On motion of the Government, without notice to appellant or others named as defendants therein, the District Court, to protect its "jurisdiction over the res" in the tax-lien-receivership action, issued a temporary restraining and show cause order, returnable on August 5, 1960. On the return date thereof a written stipulation entered into between counsel for the Government and defendant was filed in the District Court, reciting in pertinent part as follows:
"* * * that the Court may enter its preliminary injunction herein, without notice, restraining the Defendants, and each of them, their agents, servants, employees, and attorneys, and all persons in active concert and participation with them, from hereafter conveying or attempting to convey any of the realty described in the Complaint herein, except in pursuance to an Order of this Court, or any other court of competent jurisdiction from attempting or threatening to take possession of said realty, from attempting to dispossess the purchaser thereof, or from trespassing upon said realty, or interfering in any manner whatsoever with the peaceable possession thereof of Arvel and Marjorie Glinz, or their farming operation thereon, except pursuant to the judgment or Order of this Court or another court of competent jurisdiction."
As a consequence and solely on the recitals of that stipulation a preliminary injunction was entered by the District Court on August 12, 1960, restraining and enjoining the defendants accordingly.
It appears from the original files of the District Court lodged with us in connection with the instant appeal, that subsequent to our affirmance of the District Court's order confirming the receiver's sale, infra, that Court, under date of February 17, 1961,2 over the objection of the defendants, undertook to enter of record an "Order Continuing (the) Preliminary Injunction" of August 12, 1960, supra, in force "pending further order of (that) Court." Apparently the last-mentioned order was entered on oral motion made in open court without amendment of pleadings or the hearing of any evidence, as no supporting papers, transcript of testimony, findings of fact, or conclusions of law, as required by Rules 52 and 65, F.R.C.P., appear in the records of the District Court to support the action then so taken. The restraining part of that "Order Continuing Preliminary Injunction" was substantially in form as that quoted, supra.
It was thereafter, on April 30, 1962, that appellant went upon a quarter-section of the land conveyed to the Glinzes, with a tractor and a six-bottom plow and plowed up a feed-lot and then went upon some summer-fallowed land and started plowing thereon. It is not deemed necessary that we relate all factual matter appearing in the record concerning "this trespass."3 It is sufficient to say that as a consequence thereof the United States Attorney for the District of North Dakota filed an affidavit in the District Court, praying that appellant be cited to show cause why he should not be held and adjudged in contempt and be punished by a fine or imprisonment therefor. Thereafter, on the same date, an order was issued by the District Court commanding appellant to appear in that Court on May 4, 1962, to show cause why he should not be held in contempt. At the same time, a writ of attachment for the body of appellant was issued, directing that he be taken "before a United States Commissioner for the purpose of giving either a cash or corporate surety bond in the amount of $50,000.00 for his appearance" in that Court "on the return date of said Order to Show Cause." Appellant was arrested on May 1, 1962, pursuant to that writ of attachment, taken before a United States Commissioner and "committed to the Cass County (North Dakota) Jail in default of bond."
Thereafter, on May 4, 1962, a hearing was held on appellant's citation for contempt before the District Court. The proof adduced by the Government at that hearing related solely to the fact of the single "trespass" last-above-mentioned, made by appellant upon the land of the Glinzes. No other matter was then put in issue. After hearing the evidence the District Court on the same date announced and entered of record the following "Memorandum and Verdict":
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