In re Frank R. Dawley

• Decision Date: 09 January 1926
• Citation: 131 A. 847,99 Vt. 306
• Parties: IN RE FRANK R. DAWLEY ET AL
• Court: Vermont Supreme Court

131 A. 847

99 Vt. 306

IN RE FRANK R. DAWLEY ET AL

Supreme Court of Vermont

January 9, 1926

October Term, 1925.

ORIGINAL PETITION of habeas corpus to the Supreme Court Caledonia County, to secure discharge of relators, who had been committed to Caledonia county jail by chancellor for contempt. Heard at the October Term, 1925. The opinion states the case.

Although it is found that the relators are not illegally deprived of their liberty, it is adjudged pursuant to G. L 2243 that they be discharged from their imprisonment upon payment of the taxable costs of this proceeding.

H. C. Shurtleff for the petitioners.

Present: WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

TAYLOR

This is a petition for a writ of habeas corpus. The relators were committed to Caledonia county jail by order of Chancellor Thompson in a cause in chancery pending before him, entitled Bank of America of New York Trustee v. Eastern Vermont Public Utilities Corporation, for contempt in refusing to comply with an order of court made therein. This proceeding is brought to test the validity of the order of commitment. The Court not being in session at the time, the jailer made his returns of the writ to one of the Justices thereof, as therein directed, who continued the hearing to the October Term of the Court, and ordered that the relators be released from custody in the meantime upon condition that they take no further action in the suit pending in the federal court hereinafter referred to until the merits of the writ should be determined.

The material facts of record are these: The cause referred to above is a receivership proceeding in which E. Bertram Pike of Haverhill, New Hampshire, is receiver. One object of the bill was the foreclosure of a mortgage on the property of the defendant corporation. Included in the property in his hands as such receiver are four hydro-electric plants on Wells River and a tract of land at the outlet of Groton Pond, the source of said river, on which is a dam used to control the flow of water from said pond. Pursuant to an order of the court of chancery the receiver has caused necessary repairs to be made on the dam to put the same in condition for the purpose of operating the properties in the receivership. The relators are the owners of certain improved real estate, with buildings thereon, bordering on said pond. While the receivership was still pending, the relators as plaintiffs filed a bill in equity in the United States court for the District of Vermont against said Pike, complaining, in substance, that he had erected and maintained the aforesaid dam in disregard of their rights, by means of which he had set back and raised the water in said pond to their damage. The bill prayed for the assessment of the damages and that said Pike, his agents, servants, and assigns, be permanently enjoined from flowing the relators' lands. The suit in the federal court was instituted without first obtaining or seeking the permission of the State court of chancery.

Having been cited to defend said bill in equity, on July 11, 1925, the receiver made complaint in writing to the chancellor of the action of the relators in bringing the suit without permission of the court of chancery. Among other things he set out at length in the complaint his appointment as receiver and his subsequent possession and control of the receivership property under the direction and authority of the court; that included in the property of which the court had assumed jurisdiction and control was the dam in question; that on his application, representing that such dam was badly in need of repairs, the court authorized the rebuilding thereof; that pursuant to such authority he had caused necessary repairs to be made on the dam, but that no repairs had been made which raised the height of the dam or caused it to hold back the water of the pond, or to flood the lands of any person more than they had formerly been flooded, nor more than he had a right as such receiver to flow them. The complaint further charged that in violation of the court's order enjoining all persons from interfering with the possession, control, and management of the properties in the hands of the receiver, the relators had brought the bill in equity referred to above; that the attempt of the relators thus to obtain an injunction, as sought in their bill in equity, and for the collection of money damages, was such an interference with the receiver's possession, control, and management of the receivership properties, expecially of the dam in question, as to constitute a contempt of court.

The relators were cited to appear before Chancellor Thompson on the 29th day of July, 1925, to show cause why they should not be punished for contempt. They appeared as directed, and made answer to the receiver's complaint in substance as follows: They alleged that they were not parties to the receivership proceeding, have no interest in the same, are not bound thereby, and that none of them knew of the orders made in that cause; that they have not interferred, and do not intend to interfere with the receiver's lawful custody of the receivership property or his rights therein, but that they do intend to hold the receiver personally responsible for flowing their lands, as evidenced by their bill in equity brought in the district court. Relators demurred to the allegation that they had brought the bill in equity without first obtaining permission of the chancellor appointing the receiver, on the ground that such permission was not required. They charged that the petition for contempt was an attempt to prevent their exercising their rights under the Constitution and laws of the United States, and further demurred for that the chancellor was lacking jurisdiction to penalize them for invoking the jurisdiction of the United States court, or to hinder or delay orderly procedure in their action pending therein.

While the hearing on the petition for contempt was pending, the relators filed a supplemental bill in the district court reciting the proceedings subsequent to the bringing of their original bill, including the application to the chancellor to have them adjudged in contempt. The purpose of the supplemental bill was to secure an injunction to restrain said Pike from taking any further action in the matter of the petition for contempt, from interfering with the orderly procedure and trial of the suit pending in that court by any suit under authority of the State of Vermont, and from attempting to penalize the relators or any of them in any action in the courts of the State for bringing or maintaining the suit pending in the district court. This application for a temporary restraining order was brought on for hearing July 27, 1925. Judge Howe denied the application, observing that as a matter of comity he could not assume on the facts alleged that the court of chancery would interfere with the jurisdiction of the district court or penalize parties for invoking its jurisdiction.

The contempt proceeding came on for hearing at the appointed time, the parties appearing in person and by their solicitor. After hearing evidence and arguments, the chancellor adjudged that the facts stated in the petition were true, and that each of the relators was guilty of a contempt of the court of chancery by instituting, without the permission of said court, the suit in the United States District Court against the receiver appointed by the court. Among other things it was found that the suit in the federal court was instituted for the purpose of enjoining said Pike, his agents, servants, and assigns, from flowing the lands claimed by the said petitionees (the relators) by means of the dam "located on and forming a part of the real estate under the custody, control, and management of this court, the height of which dam was claimed by the petitionees to be unlawful, and for the purpose of holding said receiver personally responsible for flowing and flooding the lands claimed by the said petitionees, by means of said dam, so in possession, control and management of this court." The chancellor continued the proceedings until August 3, 1925, to give the relators an opportunity to purge themselves of the contempt by discontinuing the suit in the district court. It appearing at the time to which the matter was continued that the relators had each neglected to purge himself of the contempt in the manner specified, the chancellor then adjudged that they were still in contempt of court, and thereupon sentenced each of them to be confined in Caledonia County jail, or such other jail as the law directs, until each should purge himself of his contempt by entering his discontinuance of the suit in the district court, or until he should be otherwise discharged according to law. Thereupon a warrant was issued, and the relators were thereon duly arrested and committed to jail, which is the confinement from which they seek to be relieved.

The doctrine is well settled that the writ of habeas corpus cannot be given the effect of a writ for the correction of errors and irregularities. The proceedings under review, however irregular they may have been, will withstand the writ, if the court whose action is assailed has jurisdiction of the subject-matter and the person, and renders such a judgment or makes such an order, as, in the circumstances, it would be authorized to render or make in cases of that class. But if one be committed against the law as by one without jurisdiction of the cause, or for a matter for which no one could lawfully be committed, he may avail himself of the writ. In re Hook, 95 Vt. 497, 503, 115 A. 730, 19 A. L. R. 610, and cases there cited; In re McAllister, 97 Vt. 359, 123 A. 207. Lack of...