In re Maury

• Citation: 205 F. 626
• Decision Date: 05 May 1913
• Docket Number: 2,205.
• Parties: In re MAURY.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

205 F. 626

In re MAURY.

No. 2,205.

United States Court of Appeals, Ninth Circuit.

May 5, 1913

Two separate statements made by the plaintiff in error are alleged as misconduct on his part: First, the following statement (made while the jury was being impaneled): 'I cannot win this case in Silver Bow county, so my questioning will be very particular. ' Second, the following statement (made during the opening statement of the plaintiff in error to the jury): 'And if we show you these facts and if it is shown that Northam could not reasonably be expected in coming under that rock to know of its condition on that day on which he was killed, then are we entitled to a verdict at your hands, in favor of these plaintiffs and against the defendant? Lawyers usually close their statements of this kind that they expect a verdict at the hands of the jury. I do not expect more than a hung jury here against the defendant. If this case were in Dillon, Helena, Billings Missoula, I would-- ' At this point in the statement the plaintiff in error was interrupted by the court, and told that his language was most disrespectful to the jury; that they were officers of the court, and the court would not permit him to continue in any such line of statement; that his duty in his opening statement was to state the facts he expected to prove; that he would not be permitted to go beyond that, and would have to confine himself to that. The trial of the case was then continued. On the afternoon of the next day, after the case had been submitted to the jury and they had retired to deliberate, the plaintiff in error was called before the court, and, after he had been permitted to state why the judgment of the court should not be pronounced against him, was adjudged guilty of contempt of court and ordered to pay a fine of $500.

The statements adjudged by the lower court to be contemptuous were made by the plaintiff in error while acting as attorney for the plaintiffs in the trial of a case entitled 'Myrtle Northam and Hedley Northam, by Myrtle Northam his next Friend, Plaintiffs, v. Boston & Montana Consolidated Copper & Silver Mining Company, a Corporation Defendant,' in the District Court of the United States for the District of Montana. That case was an action to recover damages in the sum of $35,000 alleged to have arisen from injuries to the husband of the plaintiff Myrtle Northam, and the father of the minor plaintiff, Hedley Northam, through negligence of the defendant mining company.

Lewis P. Forestell and Swan T. Hogevoll, both of San Francisco, Cal., and H. Lowndes Maury, of Butte, Mont., for plaintiff in error.

C. F. Kelley and L. O. Evans, both of Butte, Mont., W. B. Rodgers, of Anaconda, Mont., and D. Gay Stivers, of Butte, Mont., for Boston & Montana Consol. Copper & Silver Mining Co.

Before GILBERT and MORROW, Circuit Judges, and WOLVERTON, District judge.

MORROW Circuit Judge (after stating the facts as above).

It is alleged by the plaintiff in error that the District Court erred in rendering judgment against him for the reason that that court was without jurisdiction to summarily punish for contempt.

Section 725 of the Revised Statutes (U.S. Comp. St. 1901, p. 583), from which the power of the federal courts in matters of contempt is derived, reads as follows:

'The said courts shall have power to impose and administer all necessary oaths, and to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority: Provided, that such power to punish contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any such officer, or by any party, juror, witness, or other person, to any lawful writ, process, order, rule, decree, or command of the said courts.'

In Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510 (22 L.Ed. 205), Mr. Justice Field, referring to the power of the federal courts to punish for contempt, and construing section 725 of the Revised Statutes, said:

'The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power. But the power has been limited and defined by the act of Congress of March 2, 1831. The act, in terms, applies to all courts; whether it can be held to limit the authority of the Supreme Court, which derives its existence and powers from the Constitution, may perhaps be a matter of doubt. But that it applies to the Circuit and District Courts there can be no question. These courts were created by act of Congress. Their powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction. The act of 1831 is, therefore, to them the law specifying the cases in which summary punishment for contempts may be inflicted. It limits the power of these courts in this respect to three classes of cases: (1) Where there has been misbehavior of a person in the presence of the courts, or so near thereto as to obstruct the administration of justice; (2) where there has been misbehavior of any officer of the courts in his official transactions; and (3) where there has been disobedience or resistance by any officer, party, juror, witness, or other person, to any lawful writ, process, order, rule, decree, or command of the courts. As thus seen the power of these courts in the punishments of contempts can only be exercised to insure order and decorum in their presence, to secure faithfulness on the part of their officers in their official transactions, and to enforce obedience to their lawful orders, judgments, and processes.'

In Ex parte Terry, 128 U.S. 289, 302, 9 Sup.Ct. 77, 79 (32 L.Ed. 405), the petitioner had been adjudged guilty of contempt by the United States Circuit Court for the Northern District of California. Mr. Justice Harlan, delivering the opinion of the court, said:

'Nor can there be any dispute as to the power of a Circuit Court of the United States to punish contempts of its authority. In United States v. Hudson, 7 Cranch, 32 (3 L.Ed. 259), it was held that the courts of the United States, from the very nature of their institution, possess the power to fine for contempt, imprison for contumacy, enforce the observance of order, etc. In Anderson v. Dunn, 6 Wheat. 204, 227 (5 L.Ed. 242), it was said that 'courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum in their presence, and submission to their lawful mandates.' So, in Ex parte Robinson, 19 Wall, 505, 510 (22 L.Ed. 205): 'The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power.' Ex parte Bollman, 4 Cranch. 75, 94 (2 L.Ed. 554); Story, Constitution, Sec. 1774. * * * But this power, so far as the Circuit Courts of the United States are concerned, is not simply incidental to their general power to exercise judicial functions; it is expressly recognized, and the cases in which it may be exercised are defined, by acts of Congress. They have power, by statute, ' to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority: Provided, that such power to punish contempts shall not

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