Holt v. Com.

• Decision Date: 15 June 1964
• Docket Number: 5631,Nos. 5630,s. 5630
• Citation: 136 S.E.2d 809,205 Va. 332
• Court: Virginia Supreme Court
• Parties: L. W. HOLT v. COMMONWEALTH OF VIRGINIA. E. A. DAWLEY, JR. v. COMMONWEALTH OF VIRGINIA. Record

Page 809

136 S.E.2d 809

205 Va. 332

L. W. HOLT v. COMMONWEALTH OF VIRGINIA.

E. A. DAWLEY, JR. v. COMMONWEALTH OF VIRGINIA.

Record Nos. 5630, 5631.

Supreme Court of Appeals of Virginia

June 15, 1964.

David Y. Klein (Albert Best; Benjamin Friedman; John Jackson, Jr.; Harold L. White, on brief), for the plaintiffs in error.

Francis C. Lee, Assistant Attorney General (Robert Y. Button, Attorney General, on brief), for the Commonwealth.

JUDGE: WHITTLE

WHITTLE, J., delivered the opinion of the court.

These cases are before the court upon separate writs of error awarded appellants Holt and Dawley to judgments entered against them in the Circuit Court of Hopewell on the 30th day of January, 1962, wherein they were summarily held to be in contempt of court and fined $50.00 each.

The following material facts are disclosed:

On January 30, 1962, the Circuit Court of the City of Hopewell had before it a contempt citation against Dawley, which grew out of Dawley's conduct in the trial of a law suit then pending, styled Hopewell News v. Curtis Harris, et al. Dawley was represented in this contempt proceeding by L. W. Holt, his law partner.

The question before the court at the time involved a motion 'for change of venue' which had been signed by Dawley and filed on January 17, 1962. The motion for the change of venue was read to the court and argued by Holt, Dawley's attorney.

It will be noted that the present contempt action against Holt and Dawley arose out of the motion for change of venue filed in the (first) contempt action against Dawley. In this connection the following occurred:

'The Court: I believe you have a plea filed here for change of venue?

'Mr. Holt: Yes sir.

'The Court: I am ready to hear you on that.

'Mr. Holt: May it please the court, the defendant, E. A. Dawley, Jr., represents as follows on a motion for change of venue * * *'.

Here attorney Holt proceeded to read the long and involved written motion for the change of venue, which motion contained the following:

'* * * [That] the said Honorable Judge Carlton E. Holladay who presided in the libel suit [Hopewell News v. Curtis Harris, et al.] and who now fails and refuses to disqualify himself as judge in the contempt trial of the defendant, E. A. Dawley, Jr., has with respect to said contempt action, and is now in effect and/or in fact acting in the capacity of police officer, chief prosecution witness, adverse witness for the defense, grand jury, chief prosecutor and judge; that in addition to the foregoing the said Judge Carlton E. Holladay did intimidate and harass the lawyer representing E. A. Dawley, Leonard W. Holt, Esquire, the effect of which is to seriously hamper the efforts of said Leonard W. Holt in defending the said E. A. Dawley, Jr.,; that said harassment and intimidation arises out of and is connected solely with Leonard Holt's participation in the defense of E. A. Dawley in the contempt action; that part of the harassment and intimidation occurred at the hearing in this matter on January 8, 1962, at which time the court revealed that it had been making an independent investigation and inquiry of Mr. Holt's conduct and of the contempt offense. The Judge said that he would deal with Leonard Holt after he had dealt with E. A. Dawley. * * *'

After attorney Holt had read the motion for change of venue, embracing the above quoted words, and had argued the same, the following colloquy occurred between the court and counsel:

'The Court: As I understand it, you have filed a copy of the motion you substantially made in the record in the case here. I believe you read from that?

'Mr. Holt: That is correct.

'The Court: And it is signed by Mr. Dawley?

'Mr. Holt: That is correct, sir.

'The Court: Under his affidavit, and you appeared, of course as representing Mr. Dawley in the matter here today?

'Mr. Holt: I don't understand the nature of the question, sir.

'The Court: I notice that the pleading was filed apparently in person rather than by you as counsel.

'Mr. Holt: Well, it was signed by him. I think we have this situation, and the Court is well aware that he, under the Constitution of the United States, and Virginia, has the right to sign pleadings in his own behalf.

'The Court: I was just merely asking -- I saw it was signed by him there and not signed by you as counsel, but you appeared here today as counsel.

'Is that correct? You have argued the motion, I understood that you appeared as counsel.

'Mr. Holt: I think that's what I have done, sir. It's before the Court.

'The Court: Before the Court. May I ask a further question here.

You have read, of course, that he cannot get a fair and impartial trial.

'Of course, the issue is still pending as to whether or not he will be tried by jury or by the Court. Do you wish to elaborate on that? I'm not asking that you do. I just want to know what you -- * * *. If you want to elaborate on it, I would like to give you an opportunity. If you don't, that is perfectly all right.

'Mr. Holt: I'm not -- May I respectfully -- You see -- Elaborate on it yet -- I have some trouble hearing sometimes, sir.

'The Court: On the motion for change of venue, does that apply whether your client would be tried before a jury or before the Court? Does it apply in both cases?

'Mr. Holt: We say it would apply.'

* * *

'[Court] At this time I might say that I do not see how this Court can pass unnoticed the matters and things that have been presented (sic) to the Court by Mr. Dawley in a plea filed in the Court and presented here in Court and by Mr. Holt as his counsel and argued in court. I think that the plea is contemptuous and I think the argument is contemptuous.

'At this time both E. A. Dawley, Jr., and Leonard W. Holt are held and adjudged summarily to be in contempt of this Court.

'I will take under advisement the punishment and advise you of it during the day.

'Court will adjourn for lunch.

'Mr. Holt: Please, before the Court adjourns, may we get the specificity on the part of the Court regarding what is considered in the pleading, if anything, contemptuous? I think under the laws of the Commonwealth and United States we are in this position -- that if something has been said which is contemptuous, there be elements of intent that should be present, and if the element of intent be present, and there are certain things which flow under it in terms --

'The Court: I don't think that you need any specification or bill of particulars on that. I think you can read it, Mr. Dawley can read it, and I think it is plain to the people who are in the courtroom that the remarks are contemptuous, and you summarily have been held in contempt of court.'

Following the citation for contempt, the court overruled the motion for the change of venue.

Thereafter, Mr. Holt undertook to address himself to the question of contempt. In his long and rather incoherent argument, Holt insisted that the court point out the matters contained in the motion which were thought to be contemptuous.

Whereupon the court certified the proceedings which transpired as follows:

'The Court read from the motion and pointed out, among other things therein, that both E. A. Dawley, Jr., and his counsel had said that the Court 'is now in effect and/or in fact acting as police officer, chief prosecution witness, adverse witness for the defense, grand jury, chief prosecutor and judge'; that both parties had made the accusation that the Court had harassed and intimidated counsel for E. A. Dawley, Jr., viz, Leonard W. Holt; that paragraph (10) of the motion contained the statement that a fair and impartial trial could not be had in the Circuit Court of the City of Hopewell; that the record contained accusation that Mr. Holt's client, E. A. Dawley, Jr., could not get a fair and impartial trial applied to both trial before a jury and trial before the court. The court then pointed out the nature of the limited apology.'

Whereupon the court then fined both E. A. Dawley, Jr. and Leonard W. Holt $50.00 each for the contempt of which they had been summarily attached and found guilty.

While appellants have filed six assignments of error to the action of the trial court, there is only one essential question presented in this case, i.e., whether the motion for change of venue, and argument thereon, presented in open court on January 30, 1962, constituted contempt of court, warranting summary judgment. Stated differently, the question is -- Does the trial court possess the power to defend itself against abusive and contemptuous attack by party litigants and their counsel even though the attacks take the form of pleadings filed and argued in the proceeding? Here we must consider:

(1) The power of a court to punish for contempt;

(2) Whether the contemners' actions were contemptuous;

(3) Whether they purged themselves of that contempt, and

(4) Whether summary action was appropriate.

The power of the court to punish for contempt can no longer be challenged. Such power is inherent in the nature and constitution of a court. It is a power not derived from any statute, but arising from the exercise of all other powers. Without such power the administration of the law would be in continual danger of being thwarted by the lawless. The power to fine and imprison for contempt is incident to every court of record. Such courts ex necessitate rei have the power of protecting the administration of justice with a promptitude calculated to meet the exigency of the particular case. The right of punishing contempts by summary conviction is a necessary attribute of judicial power. See Commonwealth v. Dandridge (1824) 2 Va.Cas. (4 Va.) 408; 4 Contempt, Sec. 5, pages 244-245.

'That the English courts have exercised the power in question from the remotest period does not admit of doubt. Said Chief Justice Wilmot: 'The power which the courts in Westminster Hall have of vindicating their own authority is coeval with their first foundation and...