In re Messmore's Estate

• Decision Date: 16 April 1928
• Docket Number: 49
• Citation: 141 A. 724,293 Pa. 63
• Parties: Messmore's Estate
• Court: Pennsylvania Supreme Court

141 A. 724

293 Pa. 63

Messmore's Estate

No. 49

Supreme Court of Pennsylvania

April 16, 1928

Argued March 13, 1928

Appeal, No. 49, March T., 1928, by Josiah V. Thompson trustee and respondent, from decree of O.C. Fayette Co., Dec T., 1924, No. 39, overruling exceptions to decree for attachment for contempt, in estate of Emma Messmore. Affirmed.

Petition for attachment for contempt. Before DAWSON, P.J.

The opinion of the Supreme Court states the facts.

Decree for attachment entered. Josiah V. Thompson, trustee and respondent, appealed.

Error assigned, inter alia, was decree dismissing exceptions to order, quoting record.

The decree appealed from is affirmed at cost of appellant.

W. C. McKean, with him E. C. Higbee, for appellant. -- A party cannot be held guilty of contempt for disobedience of an order of court unless it be shown that the order was made and personally served on him: Pierce v. Post, 6 Phila. 494; Chew's Est., 3 W.N.C. 392.

Impecuniosity is a defense: Weigel's Est., 4 W.N.S. 92; Irwin's Est., 9 Pa. Dist. R. 282; McCarrell v. Mullins, 141 Pa. 513; First Nat. Bank v. Coal Co., 213 Pa. 413; Leiter's App., 10 W.N.C. 225; Rathbun's Est., 18 Pa. Dist. R. 1031; Morrison v. Blake, 33 Pa.Super. 290.

H. S. Dumbauld, for appellees. -- The court had jurisdiction of the subject-matter and of the parties and, as we understand the law applicable to such cases, the appellate court will not review the proceedings in the court below: Williamson's Case, 26 Pa. 9; Seidman's Est., 270 Pa. 465.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. CHIEF JUSTICE MOSCHZISKER:

This controversy arises out of the failure of the appellant, Josiah V. Thompson, to make payments to four beneficiaries under the will of Emma Messmore, deceased, of whose estate he was executor. On August 16, 1926, the Orphans' Court of Fayette County awarded certain sums of money, arising from the sale of land belonging to the estate administered by appellant, to the before mentioned legatees, appellees in this case, and directed him to make payment thereof; which awards and order were affirmed by us in Messmore's Est., 290 Pa. 107. Pending this affirmance, another order to pay was entered on December 27, 1926. Next, a rule was allowed on Thompson, "requiring him to show cause why he should not make payment"; counsel for appellant, "being then in open court," waived actual issuance of this rule and later filed an answer (all of which will be stated more fully, and discussed, later in this opinion). On February 26, 1927, the answer was held insufficient and the rule was made absolute. Upon appellant's continued failure to pay, after due proceedings to that end, the court below, on September 12, 1927, issued an attachment for contempt, and this appeal followed.

Appellant claims that he was not in contempt, first, because no formal notice of the February order was served on him, and he contends that he lacked knowledge of it; second, because, at the time of the entry of the original awards and subsequent order to pay, he was wholly unable to comply therewith, owing to impecuniosity, which, he avers, was not occasioned by any fraud on his part.

As to appellant's first contention, he not only claims to have received no formal notice of the order of February 26, 1927, which is immediately involved on this appeal, but also, in the course of his brief, that he was not formally notified of the orders of August 16 and December 27, 1926. Whether or not he was served with formal notices, appellant's cognizance of all the above orders is plain beyond question, and his actions in regard to them show him to have been fixed with sufficient notice. First, his former appeal to this court from the original decree of August 16, 1926, determining the amount of his indebtedness to appellees and ordering him to pay, shows beyond question his knowledge of the court's orders up to that time. Next, his petition to set aside the supplemental order of December 27, 1926, to pay the awards notwithstanding his pending appeal (which petition was granted and the above-mentioned rule to show cause substituted in place of the prior order), shows his knowledge of that order. Coming to the order of February, 1927, appellant not only was an accountant in the court below, subject to its directions, but, by his counsel, he also actually appeared in open court on January 12, 1927, and, with knowledge of the former orders to pay the awards then under discussion, waived the actual issuance of a rule to show cause why he should not make such payments forthwith, thereby placing himself in the court below subject to all future actions of that tribunal on the rule (thus by his agreement treated as issued) or in any way connected with the object it was intended to accomplish, which was to force appellant to forthwith make payment of the amounts due appellees notwithstanding his then pending appeal from the awards to them. In fact, the object of all the proceedings supplemental to the original decree of August 16, 1926, was to force Thompson to pay the awards made by that decree pending his appeal therefrom. The decree was affirmed by us on May 27, 1927. When this affirmance took place, the various supplemental proceedings, including the order of February, 1927, had no further purpose, for the appeal from the original decree no longer pended and the order to pay the awards comprehended in that decree, of which order Thompson had undoubted knowledge, was in full force and effect. He was a party to the previous appeal and must be taken to have known of its disposition, which occurred prior to the attachment for contempt now before us on the present appeal. Under these circumstances, appellant's plea of lack of formal notice of the orders of the court below is unavailing.

Although at one time it seems to have been the generally recognized rule in Pennsylvania courts of first instance that a party could not be adjudged guilty of contempt for disobedience of a judicial order unless it was shown that the order in question had been "personally served" upon him (Chew's Est., 3 W.N.C. 392; McKinney's Est., 2 W.N.C. 156; Killiam's Est., 2 W.N.C. 684; Keating's Est., 1 Woodw. 340; Pierce v. Post, 6 Phila. 494); yet Robb v. Pepper, 11 W.N.C. 497, recognized that, in equity, the necessity of personal service, to found an attachment, was "a matter within the discretion of the court." In New Brighton v. Pittsburgh, 105 Pa. 13, and in Douglass-Whisler v. Simpson, 233 Pa. 517, 519, the former rule was modified so as to require only "such previous notice as will afford [the parties] an opportunity of being heard." The last enunciations of the law on this subject, in our appellate courts, appear in Sperry, etc. v. McKelvey, etc., 64 Pa.Super. 57, 61, and Scranton v. Peoples Coal Co., 274 Pa. 63, 72; in the former case, Judge KEPHART, now a justice of this court, said that those to whom an order is addressed, "who know of the existence of the court's decree . . . will be just as guilty of a contempt" for a violation of it as those who had actual service; in the latter, Justice SIMPSON wrote, "liability exists where [parties] had actual notice [in the sense of "personal knowledge"] though neither the injunction nor subpoena had been served upon them . . ., and this for the reason that the law does not permit one, who knowingly acts in contempt of its decrees, to escape liability on a technicality." These decisions are amply supported by authority: see In re Lennon, 166 U.S. 548, 554; Ulman v. Ritter, 72 Fed. Repr. 1000, 1002-1003; Cape May, etc., Railroad Co. v. Johnson, 35 N.J. Equity 422, 424, and authorities there cited. See also Kelly v. Montebello, 141 Md. 194, 28 A.L.R. 33; 15 A.L.R. 386 and 398; note to Farnsworth v. Fowler, 1 Swan 1, in 55 American Decisions 718, 722-723. Digesting the general law and citing People ex rel. Osborne v. Duchess Co., 20 N.Y.S. 329, the annotator in 10 L.N.S. 1098, 1101, states, "If the one accused of contempt has direct knowledge of the proceedings against him therefor, he cannot avail himself of the fact that the process was not served upon him," and it has been so held very generally in recent times by the lower courts in our own state: see York Mfg. Co. v. Oberdick, 11 Pa. Dist. Reports 616, 618; Titusville Iron Co. v. Quinn, 13 Ibid. 416, 420; Patterson, etc. Co. v. Building Trades Council No. 2, 14 Ibid. 843; see also authorities cited at page 845 of last mentioned case.

Appellant filed no bond to make his appeal from the original awards of August 16, 1926, a supersedeas; hence, in default of payment a reasonable time thereafter, on the face of the record he has ever since stood in contempt subject to attachment. This contempt continued till the present attachment issued, and still persists, unless the court below erred in holding appellant's conduct to be a contempt. As to this, he contends that his inability to pay was not due to fraud on his part and therefore he is excused from what might otherwise have been prima facie contempt.

The contention just stated raises the further question whether, under the circumstances of the present case, appellant's averment, in his answer, of impecuniosity had the effect in law of preventing the court below from adjudging him, on the record as it stood, to be in contempt. As to this, we conclude that it was entirely right for the court to dispose of the present case on the pleadings, for appellant's averments as to his inability to pay could avail him nothing: Matter of Kurtzman, 2 N.Y. State Reporter 655. The court below knew that the alleged inability to pay was occasioned by a misuse of funds for that there was such a misuse had in effect been adjudicated as a matter of...