In re Hayden

• Decision Date: 05 November 1927
• Docket Number: No. 65-381.,65-381.
• Citation: 139 A. 328
• Parties: In re HAYDEN.
• Court: New Jersey Court of Chancery

139 A. 328

In re HAYDEN.

No. 65-381.

Court of Chancery of New Jersey.

Nov. 5, 1927.

(Syllabus by the Court.)

In the matter of Joseph P. Hayden, charged with contempt of court. On rule to show cause why respondent Hayden should not be adjudged guilty of contempt. Respondent to be attached and brought before court for judgment.

WALKER, Chancellor. Upon the return of a rule to show cause why the respondent, Joseph P. Hayden, a solicitor in chancery, should not be adjudged guilty of contempt of the power, authority, and dignity of the Court of Chancery of New Jersey, in falsely and fraudulently uttering and delivering a supposititious decree and certification thereof to Gertrude Griffith, falsely called Ferme, and by false and fraudulent pretenses procuring from her the sum of $300, and why he should not forthwith repay to her such sum, Hayden, the respondent, did not appear. He had been duly served with true and certified copies of the affidavits upon which the order to show cause was founded, and of the order, agreeably to the directions thereof, and on his default an order was made and entered adjudging him to be guilty of contempt of this court in the matters alleged against him. The order contained a provision that he should forthwith repay to Mrs. Griffith the sum of $300, and that, in default thereof, a warrant should issue to the sheriff of Hudson county to take his body and him safely keep until such payment to the clerk in chancery, for the use of Mrs. Griffith, or to the sheriff for him. The reason he was, on default of payment to Mrs. Griffith, afterwards ordered to pay to the clerk for her use, or to the sheriff for the clerk, when the latter had the writ, was so that the Chancellor could keep supervision over the question of repayment, and prevent the issuance of a warrant in case it had not been made to the party. A warrant was accordingly issued, because of Hayden's default, and on the following day he sent the money to the clerk in chancery, which absolved him from imprisonment on that warrant. The order provided for an adjournment for two weeks, for the purpose of punishment. That order was, by sundry continuances, adjourned, and the defendant commanded to be and appear upon the adjourned day to receive the judgment of the court. He has not appeared, and apparently does not intend to do so, and there will be no further adjournments; but an appropriate warrant will be issued commanding the sheriff of Hudson to bring Hayden here for the purpose of receiving sentence.

This was both a civil and a criminal contempt; civil in favor of the petitioner, Mrs. Griffith, for the return of her money; criminal to vindicate the power, authority, and dignity of the court. This is one of the most flagrant contempts that has recently been committed against this court. And nothing short of a term of imprisonment will be anything like adequate justice to mete out to this derelict defendant.

This, as said, was both a civil and a criminal contempt, and, while a respondent cannot be sentenced to imprisonment in his absence, as will hereafter more fully appear, and while it may be questioned as to whether the court has power to try him at all for the criminal contempt without a personal appearance, neverthless, I have considered that matter, and have decided that the power exists.

In Brown v. Brown, 96 N. J. Eq. 428, at page 429, 126 A. 36, 37, I took occasion to say:

"If the defendant in a criminal contempt case is served with due and proper notice the proceeding against him within the jurisdiction of the court, and does not appear either in person or by counsel, but makes default, he may be condemned on ex parte affidavits, notwithstanding anything that was said in the Staley Case, infra (83 N. J. Eq. 300 [90 A. 1042, L. R. A. 1917B, 113, Ann. Cas. 1916B, 955]), for it was also said in that case, concerning the rights of a defendant charged with criminal contempt (83 N. J. Eq. 305 [90 A. 1042, L. R. A. 1917B, 113, Ann. Cas. 1916B, 955]) that one of those rights was that the facts by which his guilt is to be determined shall be established by the oaths of witnesses subject to cross-examination and impeachment, unless the accused either expressly or by implication waived the right, as to which point nothing was decided. Now, for the court to sit and hear oral testimony, when defendant is absent through default after due and legal notice, and is not represented by counsel, would be but an idle gesture, as there would be no one to cross examine the witnesses or to impeach their credibility; provided, however, that the affidavits had been duly served upon defendant and were in and of themselves legal evidence. Defendant, being absent, would have a right to reply on being condemned by legal evidence only. In re McCraven, supra (87 N. J. Eq. 28 [99 A. 619]). If the affidavits did not, by legal evidence, make a case against him, the defendant could absent himself with confidence that there would be an entire failure of proof. Butts v. French, 42 N. J. Law, 397, 400."

When I speak of legal evidence in this connection, I mean, of course, affidavits that in and of themselves make a complete factual case against the defendant. The affidavits in this matter, which were duly served, make such a case. The civil feature of the contempt, namely, the order to make the contemptuous solicitor pay back to his client the money which he obtained from her, is, of course, within the jurisdiction of this court, and an order for such repayment was made and was complied with by the respondent.

It is to be observed that I said in the Brown Case, speaking of the Staley Case, that the Court of Errors and Appeals said that the guilt of the defendant is to be established by the oath of witnesses, "unless the accused either expressly or by implication waives the right." It is true that the Court of Errors and Appeals said that they decided nothing as to that point, and, as I said in the Brown Case, if the court should sit and hear oral testimony when the defendant is absent after due and legal notice, and is not represented by counsel, it would be but an idle gesture, as there would be no one to cross-examine witnesses or impeach their credibility. A party who has been given due opportunity to appear and be heard cannot complain if he is condemned in his absence upon sufficient proof to legally establish the fact according to the ordinary processes of the court; and trial by affidavits is a particular feature of the Court of Chancery. In this case, as already said, the respondent was duly served, but chose not to appear upon the return of the order to show cause, which was due process. In every judicial procedure it is essential that the person whose rights are to be affected should be a party and have an opportunity of making a defense; and he must be brought in by process, which need not be a subpœna or other writ, but may be an order or notice. In re Martin, 86 N. J. Eq. 265, 274, 98 A. 510. Of course, these proceedings may be summary.

A defendant in a criminal contempt of the Court of Chancery cannot complain generally of a judgment pronounced against him in his absence, after being duly served, etc. He cannot be punished corporally except upon his presence before the court, when he may urge any matter of defense, one of which is that he demands to be confronted with witnesses so that he may cross-examine them. But he may, as hereafter will appear, be sentenced to a fine upon the conviction already had. In West v. State, 22 N. J. Law, 212, at page 229, it is said that, except upon a capital charge, it is not necessary that the defendant should be asked if he has anything to offer why judgment should not be pronounced against...