In re Guzzardi, 212.

• Decision Date: 21 January 1935
• Docket Number: No. 212.,212.
• Citation: 74 F.2d 671
• Parties: In re GUZZARDI. GOLUB v. GUZZARDI.
• Court: U.S. Court of Appeals — Second Circuit

74 F.2d 671 (1935)

In re GUZZARDI GOLUB v. GUZZARDI.

No. 212.

Circuit Court of Appeals, Second Circuit.

January 21, 1935.

Abraham J. Halprin, of New York City (Irving Barry, of New York City, of counsel), for appellant.

London, Guzik & London, of New York City (Leo Guzik, of New York City, of counsel), for appellee.

Leo J. Hickey, U. S. Atty., of Brooklyn, N. Y. (Emanuel Bublick, Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for the United States, amicus curiæ.

Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

The bankrupt appeals from an order of the bankruptcy court sentencing him to 60 days' imprisonment for contempt of court. The proceeding was commenced by an order to show cause, supported by the petition of the trustee in bankruptcy, both entitled in the bankruptcy proceeding. The order required the bankrupt to "show cause why he should not be punished for contempt of court for interfering with the orders of this court and with the administration of the estate * * * and in concealing and inducing disobedience of the witnesses to the orders of this court and why he should not be directed to produce for examination * * * Josephone Quartucci, Caroline Quartucci and John Quartucci." The petition stated its purpose in substantially similar form, speaking however of the production of the witnesses as "additional or alternative relief." It concluded with a prayer "that the bankrupt should be punished for contempt of court and should be directed to produce his relatives as witnesses and that he be stayed and enjoined from interfering with the processes of this court and from harboring these witnesses." The bankrupt filed an affidavit containing argumentative denials of the petition, and the case went to trial before the judge. The general purpose of the proceeding was ancillary to disclosing the bankrupt's relation to a restaurant, a broker's account, and an automobile; the trustee asserted that each of these was his property and might be reclaimed for the creditors. To establish that position he wished to examine Josephine Quartucci, the bankrupt's sister, Caroline Quartucci, his niece, and John Quartucci, his brother-in-law; and their appearance to testify he alleged that the bankrupt had prevented. John may be disregarded — nothing was shown as to him; but we will assume that as to both Caroline and Josephine, there was enough evidence to support the finding that he had actively interfered with the trustee's efforts to get their testimony, although Caroline was fully examined before the referee, while this proceeding was in progress. At the conclusion of the evidence the judge committed the bankrupt to prison for sixty days. The most important question is whether the proceeding was obviously criminal from the outset, or from a time early enough to advise him and protect his rights. To prove that it was, the trustee relied especially upon the process and the petition which asked that he be "punished" for having interfered with the processes of the court, and upon the repeated declarations of the judge during the hearings that the proceeding was to "punish" him for contempt. Again, he relied upon the reply to the court, after sentence, of the attorney for Caroline Quartucci acting apparently for the bankrupt, at the moment, that he had assumed from the way the proceeding was going, that he would be imprisoned.

The great importance attached to the characterization as criminal of a proceeding to punish for contempt, dates from Gompers v. Buck's Stove Co., 221 U. S. 418, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874, before which the practice had been looser. The Supreme Court there set out the elements which persuaded it that that proceeding had been civil. We read the opinion, not as making crucial any one detail, but rather as summing up the features of a portrait which as a whole was plainly recognizable. If so, our duty here is to learn how far the case at bar may be superimposed upon the facts there. That proceeding was prosecuted by the party aggrieved; it was apparently a part of the civil proceedings in chief, being so entitled; the plaintiff asked costs, and called the respondents to the stand; there was a clause in the prayer asking general relief. The facts here are parallel except that the trustee did not call the bankrupt to the stand and asked no costs. Nevertheless the character of the charge at bar was as equivocal as there; to demand that the respondent should be "punished" did not tell him that he stood in jeopardy of an unconditional imprisonment. "Punishment" is a word apt for civil contempts and constantly so used. Thus, if a man be imprisoned for violation of a decree till he complies with it, he would regard himself as "punished"...