Kelly v. Montebello Park Co.

• Decision Date: 21 June 1922
• Docket Number: 13.
• Citation: 118 A. 600,141 Md. 194
• Parties: KELLY et al. v. MONTEBELLO PARK CO. et al.
• Court: Maryland Court of Appeals

118 A. 600

141 Md. 194

KELLY et al. v. MONTEBELLO PARK CO. et al.

No. 13.

Court of Appeals of Maryland

June 21, 1922

Appeal from Circuit Court of Baltimore City; Carroll T. Bond, Judge.

"To be officially reported."

Action by the Montebello Park Company and others against John H Kelly and wife. From an order adjudging them in contempt for violation of a temporary injunction, the defendants and Charles E. Collison appeal. Appeal dismissed.

John W Lohmuller, of Baltimore, for appellants.

Carl M Distler and Frederick H. Hennighausen, both of Baltimore, for appellees.

THOMAS J.

This appeal is from an order of the circuit court of Baltimore City passed in contempt proceedings.

On the 11th of November, 1921, the Montebello Park Company, a body corporate, Frank M. Goetz, and Annie M. Goetz, his wife filed a bill of complaint in the circuit court of Baltimore City against John H. Kelly and Marie Kelly, his wife, to enjoin them from erecting or proceeding with the erection of a garage on their lot in Baltimore City within 75 feet from the front street line of said lot, and on the same day a preliminary injunction was granted and issued enjoining the defendants, their "agents, servants and employees," as prayed in the bill. The indorsements on the writ of injunction returned by the sheriff set out in the record contain the affidavits of Carl Martin Distler and Frederick H. Hennighausen that a copy of the writ was served by them on John H. Kelly and Marie Kelly, his wife, on the same day it was issued, and the return of the sheriff stating that the injunction was again served on Kelly and his wife on the 14th of November, 1921. On the latter date the court below passed an order requiring Kelly and his wife and Harry Collison to appear in said court on the 18th of November, 1921, and show cause why they should not be punished for contempt of court for disobeying the injunction issued on the 11th of November, 1921, and on the 15th of November Kelly and his wife filed their "answer" setting up the following defenses:

"(1) That the paper alleging to be a writ of injunction was served on them on November 11, 1921, a legal holiday.

(2) That the said writ of injunction was not served by a sheriff or deputy sheriff of Baltimore City.

(3) That the said writ of injunction was not served upon the independent contractor who was engaged in erecting the garage mentioned therein.

(4) That the said John H. Kelly and wife had no control over the said contractor, and could not carry out the orders of this court." After a hearing on the 18th of November, 1921, at which Kelly and his wife and Harry Collison were present and testimony was produced to show the violation of the injunction, and also by the defendants, the court below passed an order in which, after stating that the evidence showed that Kelly and his wife and Collison had willfully violated the injunction, it imposed a fine of $200 on Kelly and his wife, and a fine of $100 on Collison, and committed them to the custody of "the warden of the jail of Baltimore City" until the fines were paid. The defendants promptly paid the fines imposed, and then entered this appeal from the order.

The first and important question to be determined is whether an appeal lies from such an order. The common-law rule was that a court of competent jurisdiction is the sole judge of contempts against its authority and dignity, and its judgment in such cases is final and conclusive, and not reviewable by any other tribunal, either on a writ of error or appeal, unless specially authorized by statute. Rapalje on Contempts, § 141; 7 Am. & Eng. Ency. of Law, 33, 34; 9 Cyc. 61, 62; 13 C.J. pp. 97, 98, par. 155; 6 R. C. L. pp. 538-540, § 51; R. C. L. Supp. 2, p. 151, § 51.

It is said in 13 C.J. 97:

"The common-law rule has been changed, however, in many jurisdictions by constitutional or statutory provisions authorizing a review. Accordingly, in jurisdictions where, by statutory or constitutional provisions, review of contempt orders may be had, authority is not wanting in support of the right of review in cases of civil or constructive contempt, especially in remedial proceedings for contempt where the punishment inflicted is in the nature of an indemnity to the party injured."

It is said in 7 Am. & Eng. Ency. of Law, pp. 28, 29:

"Contempts of court are further classified as criminal and civil. The division between the two is not uniformly defined in all jurisdictions."

This is illustrated by the several definitions of civil and criminal contempts contained in the text and in the note on page 29. See, also, Rapalje on Contempts, § 21; 9 Cyc. p. 6; 6 R. C. L. 490, and 13 C.J. 6. In the case of Bessette v. W. B. Conkey Co., 194 U.S. 324, 24 S.Ct. 665, 48 L.Ed. 997, the Supreme Court quotes the following statement of Judge Sanborn in Re Nevitt, 117 F. 448, 54 C. C. A. 622:

"Proceedings for contempts are of two classes, those prosecuted to preserve the power and vindicate the dignity of the courts and to punish for disobedience of their orders, and those instituted to preserve and enforce the rights of private parties to suits, and to compel obedience to orders and decrees made to enforce the rights and administer the remedies to which the court has found them to be entitled. The former are criminal and punitive in their nature, and the government, the courts and the people are interested in their prosecution. The latter are civil, remedial and coercive in their nature, and the parties chiefly in interest in their conduct and prosecution are the individuals whose private rights and remedies they were instituted to protect and enforce. Thompson v. Railroad Co., 48 N. J. Eq. 105, 108, 21 A. 182; Hendryx v. Fitzpatrick (C. C.) 19 F. 810; Ex parte Culliford, 8 Barn. & C. 220; Rex v. Edwards, 9 Barn. & C. 652; People v. Court of Oyer and Terminer, 101 N.Y. 245, 247, 4 N.E. 259, 54 Am. Rep. 691; Phillips v. Welch, 11 Nevada, 187, 190; State v. Knight, 3 S. Dak. 509, 513, 54 N.W. 412, 44 Am. St. Rep. 809; People v. McKane, 78 Hun, 154, 160, 28 N.Y.S. 981; 4 Bl. Comm. 285; 7 Am. & Eng. Ency. Law, 68. A criminal contempt involves no element of personal injury. It is directed against the power and dignity of the court, and private parties have little if any interest in the proceedings for its punishment. But if the contempt consists in the refusal of a party or a person to do an act which the court has ordered him to do for the benefit or the advantage of a party to a suit or action pending before it, and he is committed until he complies with the order, the commitment is in the nature of an execution to enforce the judgment of the court, and the party in whose favor that judgment was rendered is the real party in interest in the proceedings."

In Bessette's Case, Bessette was not a party to the suit in which the injunction was granted, but, with knowledge of the restraining order, he violated the injunction and was fined $250 by the Circuit Court for contempt. From the judgment and order imposing the fine he prayed an appeal to the Circuit Court of Appeals, and the question to be determined by the Supreme Court was whether the Circuit Court of Appeals could review an order of a District or Circuit Court in contempt proceedings. After quoting the above statement of Judge Sanborn, Mr. Justice Brewer said:

"Doubtless the distinction referred to in this quotation is the cause of the difference in the rulings of various state courts as to the right of review."

The Supreme Court held that as Bessette was not a party to the suit, his case came more fully within the punitive than in the remedial class, and that as the Act of March 3, 1891, establishing Circuit Courts of Appeals, gave those courts jurisdiction to review decisions of the District Courts and the existing Circuit Courts in criminal cases, the Circuit Court of Appeals had jurisdiction to review the judgment against Bessette, and in stating its conclusion said:

"Considering only such cases of contempt as the present-that is, cases in which the proceedings are against one not a party to the suit, and cannot be regarded as interlocutory-we are of opinion that there is a right of review in the Circuit Court of Appeals. Such review must, according to the settled law of this court, be by writ of error. *** On such a writ only matters of law are considered. The decision of the trial tribunal, court or jury, deciding the facts, is conclusive as to them."

In the case of Matter of Christensen Engineering Co., 194 U.S. 458, 24 S.Ct. 729, 48 L.Ed. 1072, the defendant in a suit for injunction, etc., was adjudged guilty of contempt for disobeying a preliminary injunction and ordered to pay a fine of $1,000, one half to the United States and the other half to the complainant. On a petition for a mandamus commanding the Circuit Court of Appeals to take jurisdiction of a writ of error by which the petitioner sought to have the action of the Circuit Court adjudging him guilty of contempt reviewed, the Supreme Court held, quoting from the syllabus:

"Where an order imposing a fine for a violation of an injunction is substantially one to reimburse the party injured by the disobedience, although called one in a contempt proceeding, it is to be regarded as merely an interlocutory order, and to be reviewed only on an appeal from the final decree. Where, however, the fine is payable to the United States and is clearly punitive and in vindication of the authority of the court, it dominates the proceeding and is reviewable by the Circuit Court of Appeals on writ of error, Bessette v. W. B. Conkey Co., 194 U.S. 324, and the Court should take jurisdiction."

The distinction between civil and criminal contempts was again considered in Gompers v. Buck Stove & Range Co., 221 U.S. 418, ...