In re Cary

• Decision Date: 07 March 1882
• Citation: 10 F. 622
• Parties: In re CARY.
• Court: U.S. District Court — Southern District of New York

10 F. 622

In re CARY.

United States District Court, S.D. New York.

March 7, 1882

H. C Beach, for bankrupt.

Philo Chase, for Youmans and Prentiss.

John C Lang, for Wagner.

BROWN D. J.

Cary was adjudicated a bankrupt on April 17, 1878. On the sixth of January, 1881, a judgment for $45.72 was obtained against him by Youmans, in the third district court of this city, for an old claim of $36. This claim was one of several against various persons which Youmans had placed in the hands of Prentiss, an attorney, for collection on shares without expense to Youmans, and the judgment was obtained through Prentiss as attorney. Execution was issued thereon by the clerk of that court on the same day to Taylor, one of the city marshals, who was thereupon went with the execution to a store where the bankrupt was employed by his brother, and levied on certain property. On the following day the bankrupt presented a petition to this court, and obtained an injunction order, for the subsequent alleged violation of which this proceeding was had.

The injunction order refers to the petition as 'annexed,' and directs that all proceedings under 'a certain judgment recovered in the third judicial district court of the city of New York by one Edgar W. Youmans against said bankrupt for a certain debt set forth in his said petition amounting to the sum of $36, and upon which said judgment execution appears to have been issued against the property and effects of said bankrupt, be stayed, and the said Edgar W. Youmans, his marshals, agents, and servants in charge of said writ of execution be and they are, and every one of them is, hereby enjoined and restrained from making any levy upon or sale of the property and effects of said bankrupt until his application for discharge in bankruptcy by this court and now pending shall have been heard and determined, or the further order of the court. ' A certified copy of this order, not including the petition, was on the same day served upon Taylor, and no further proceedings were taken on the said execution, except that it was returned by the marshal 'No property found. January 26, 1881. ' The injunction order was never served upon either Youmans or Prentiss, his attorney; and both deny emphatically all knowledge of it. On the tenth of February, 1881, Youmans sold and assigned his judgment to one Vonderschmidt, for whom Prentiss subsequently acted.

On February 21st, Prentiss requested the clerk of the court again to issue execution on the judgment, which he did, and delivered it to Wagner, another city marshal, for execution. The property in the store where the bankrupt was being claimed by his brother, Vonderschmidt, the assignee of the judgment, on February 23d, gave a bond of indemnity, with surety, to Wagner, the marshal, who on the 24th went to Cary's place and levied under the execution upon a quantity of clothes-hooks, the brother's property, and packed them in two packing cases, alleged to be the property of the bankrupt, and of the value of five dollars; and on February 25th removed them to an auction store for sale. The clothes-hooks were replevied in a suit brought by the bankrupt's brother against the marshal and Youmans, and that suit is still pending; the packing cases, the property of the bankrupt, of the alleged value of five dollars, have disappeared.

On the twenty-fifth of February a petition was presented to this court setting forth a part of the above facts only, asking for an order, which was granted on the 26th, to show cause why Youmans, Prentiss, and Wagner should not be punished for contempt in violating the injunction order of January 7th. A further application for restraining the sale of the goods levied on was denied, on the ground, as stated in the memorandum upon the papers, that 'the goods being alleged not to belong to the bankrupt, an injunction as to them would be improper. ' The order to show cause was served upon the three respondents named, each of whom put in an affidavit denying any knowledge of the injunction until service of the order to show cause, upon which an order of reference to the register was made on May 4, 1881, to take proof of the facts; and upon his report, and all the papers in the case, the matter has been brought to a hearing.

It is to be regretted that so much time, both of the court and the parties, should be expended upon so trifling a matter. The claim that any essential principle is involved in it is dissipated by the ambiguous character of the injunction order itself, the entire want of service of it upon either of the respondents, and the doubt which still exists as to their knowledge of it--doubts which thus hang over every important element in the alleged contempt.

1. The enjoining part of the order of January 7th was not drawn in language exact enough or broad enough, if it were intended to enjoin Youmans, and all other persons, from any further proceedings upon any execution issued, or that might be issued, upon the judgment referred to. The only persons enjoined are the 'said Edgar W. Youmans, his marshals, agents, and servants in charge of said writ of execution,' and those persons, and no others, were enjoined 'from making any levy upon or sale of said bankrupt's property. ' As it reads, its meaning and design would seem to be to stop further proceedings upon the execution then in the hands of Marshal Taylor. The order was served upon him alone. No attorney is named or referred to in the order; and, though both Prentiss, the attorney, and Youmans, the plaintiff, were all the time easily accessible, no attempt was made to serve or to notify either of them of the injunction. This confirms the apparent object of the order, as gathered from its language, viz., to restrain any levy or sale upon the execution then in the hands of Taylor. This injunction was obeyed by Marshal Taylor's return of that execution unsatisfied. There is nothing in this order which can apply in terms to Wagner, another marshal, to whom another execution was issued by the clerk of the court a month afterwards. He was never 'in charge of the execution' referred to in the injunction order. Doubtless, the order might just as well have been drawn so as to restrain all proceedings by any person upon any other execution issued on the judgment; but it does not do so; and the failure either to express such an intention or to serve the order on Prentiss or Youmans, as would naturally have been done if there had been any such intention, leads me to the conclusion that such was not the actual design of the parties who obtained the order.

The act of March 2, 1831, (4 St. at Large, 487,) was designed to limit, and does limit, the power of the United States courts to punish for contempt to the specific cases therein named. That of disobedience 'to any lawful order of the court' is the only one applicable here. Ex parte Robinson, 19 Wall. 505. To sustain proceedings for contempt the order should be clear and certain in its terms, and as against a public officer, no doubt should exist whether it applied to him or embraced the acts complained of. Weeks v. Smith, 3 Abb.Pr. 211; Whipple v. Hutchinson, 4 Blatchf. 190; Vose v. Trustees, 2 Woods, 647.

2. The injunction order did not intelligibly recite the judgment referred to; the copy exhibited to Wagner referred to a petition 'annexed' which was not annexed; and the copy of the order gave no date of the judgment, but referred to a judgment for $36. The execution recited a judgment of $45.72. The officer could not assume that the two judgments were the same. In re Metcalf, 46 Barb. 325, 329.

3. The property levied on was asserted by the bankrupt to be the property of his brother. Much of the controversy at the time of the levy related to that claim. The marshal was indemnified against it. As a last resort the injunction order was produced by the bankrupt, and shown, as he says, to the marshal, though the latter denies this, and it is not pretended that he had any previous knowledge of it. The circumstances were calculated to arouse the suspicion of the marshal upon these several claims. I think he was not required, being indemnified, to run the personal risk of having the goods spirited away, even if this dubious injunction order was exhibited to him, by forbearing from his levy, while he should endeavor to do the best he could to supply the defects of the injunction order by ascertaining whether it was intended to apply to him or to the judgment which he held.

4. As to Youmans and Prentiss the motion should be denied for additional reasons. The relaxation of the rule requiring personal service of an injunction order as the basis of proceedings for contempt, which is a well-settled ordinary rule, exists only in cases where it is necessary in order that the ends of justice should not be defeated. This relaxation is not designed to dispense in the slightest degree with the service of the order, or due notice of it to those who are designed to be bound by it, where such service may be easily procured in the ordinary course of legal proceedings. The cases in which it originated were those in which the party enjoined was personally in court and knew of the injunction order being directed, but violated it before it could be entered and served. Skip v. Harwood, 3 Atk. 564; Cowell v. Collett, 3 Atk. 567; Hearn v. Tennant, 14 Ves. 136; Vassandan v. Rose, 2 J. & W. 264; Kimpton v. Eve, 2 Ves. & Bea. 349; McNeil v. Garratt, 1 Cr. & Ph. 97; Hull v. Thomas, 3 Edw.Ch. 236;

People v. Brower, 4 Paige, 405; Haring v. Kauffman, 2 Beas. 397; In re Feeny, 4 N.B.R. 233. In all these cases it either plainly appeared or was admitted that the persons proceeded against had full knowledge of the injunction, and either disobeyed it before the...