John B. Alfred v. Sarah B. Alfred And S. Dwight Alfred
| Decision Date | 09 May 1914 |
| Citation | 90 A. 580,87 Vt. 542 |
| Parties | JOHN B. ALFRED v. SARAH B. ALFRED and S. DWIGHT ALFRED |
| Court | Vermont Supreme Court |
November Term, 1913.
PETITION to punish for contempt of court, brought to the Supreme Court for the county of Franklin at its November Term, 1913, and heard on the pleadings and the report of a special master. The opinion states the case.
Petition dismissed with costs.
C G. Austin & Sons for the petitioner.
Elmer Johnson for the petitionees.
Present POWERS, C. J., MUNSON, WATSON, HASELTON, and TAYLOR, JJ.
The petitioner charges that the defendants are guilty of contempt of this court, on account of having sold and disposed of certain personal property involved in Alfred v. Alfred, 86 Vt. 500. A special master was appointed herein, who has heard the evidence and reported the facts upon which we are now to give judgment. The original suit was begun October 27, 1911, and involved the rights of the parties in and to the so-called Lavender Farm, and the personal property thereon which consisted of horses, cows, farming tools and machinery, produce and other personal property. When that case was before the special master, evidence was given regarding this personal property but when the report came in, the findings regarding it were so meager that the court of chancery declined to make any decree covering the same, though the orator therein insisted that he was entitled to a decree on the personal property. Accordingly, a decree was rendered establishing the orator's rights in the farm and the rents, issues and products thereof, only. This decree was appealed from by the defendants but not by the orator. So when the cause reached us, we had nothing to do with the personal property, other than the rents, issues and products of the farm. So we were sitting in review, only, to correct errors in the decree pointed out by the defendants. Beyond this, our duty did not carry us.
There had been no preliminary injunction in that suit, but the decree appealed from contained a provision restraining the defendants from interfering with the orator in his possession, control and management of the farm, and from receiving or controlling any of the rents, issues and products thereof. This decree was filed in the court of chancery November 26, 1912, and the defendants' motion for an appeal therefrom was filed three days later.
The court of chancery, doubtless, could have made a valid order enjoining the defendants from using or disposing of the rents and products during the pendency of the appeal, either by virtue of its inherent powers, Merrimack River Sav. Bank v. Clay Center, 219 U.S. 527, 55 L.Ed. 320, 31 S.Ct. 295, or under the provisions of P. S. 1308. And no doubt this Court could have made such an order under P. S. 1310. But nothing of the kind was done. The motion effected the appeal and transferred the cause of this Court. Lafountain v. Wilder, 86 Vt. 301, 85 A. 5. And while it is said in Gale v. Butler, 35 Vt. 449 and in re Chickering, 56 Vt. 82, that an appeal in chancery vacates and annuls the decree, it is not altogether certain that the injunction was wiped out. Prior to 1839 such would have been the result. But since that time, though cases are still transferred from the court of chancery to this Court by "appeals," this Court sits in such cases in error only. So, if the question was here essential, we might have to hold that an appeal from a decree enjoining a defendant from doing an act does not suspend the operation of the injunction, stay it or disturb its operative force. To this effect are Barnes & Co. v. Chicago Typo. Union, 232 Ill. 402, 83 N.E. 932, 14 L.R.A. (N. S.) 1150, 122 Am. St. Rep. 129; 2 High Injunc (4th ed.) Sec. 1698a; State v. Dillon, 96 Mo. 56, 8 S.W. 781; Dewey v. Superior Court, 81 Cal. 64, 22 P. 333; Bullion, B. & C. Mining Co. v. Eureka Hill Mining Co., 5 Utah 151, 13 P. 174; 2 Cyc. 913. It is to be noted that we are now speaking of prohibitory injunctions, only.
But if this injunction remained in force, a violation of it was a contempt of the court that granted it and not this Court. Barnes & Co. v. Chicago Typo. Union; 2 High Injunc., and cases supra.
So far as this Court is concerned, then, the case stands as if no injunction had been granted.
It does not follow, however, that this complaint is without merit for its allegations are broad enough to cover the rule which is said to be that it is a contempt wilfully to destroy, conceal or dispose of the subject-matter of litigation pending the proceedings. But was the personal property or any part of it the subject-matter of litigation when disposed of? As we have seen, it was involved in the suit during a part...
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