Mitchell v. Dexter
| Decision Date | 27 June 1917 |
| Docket Number | 1286. |
| Citation | 244 F. 926 |
| Parties | MITCHELL, United States Marshal, v. DEXTER. |
| Court | U.S. Court of Appeals — First Circuit |
Sherman L. Whipple and Alexander Lincoln, both of Boston, Mass (George W. Anderson, U.S. Atty., Daniel A. Shea, Asst. U.S Atty., and Leo A. Rogers, all of Boston, Mass., on the brief), for appellant.
Robert Cushman, of Boston, Mass. (Odin Roberts, Charles D Woodberry, and Roberts, Roberts & Cushman, all of Boston Mass, on the brief), for appellee.
Before BINGHAM, Circuit Judge, and BROWN and MORTON, District Judges.
The questions in this case arise on the petition of Alvin S. Dexter, of Manchester, in the district of Massachusetts, for a writ of habeas corpus. In the court below a writ of habeas corpus was issued and the marshal made his return, in which he set forth that he arrested and took Dexter into custody by virtue of process issued by the District Court of the United States for the Eastern district of Wisconsin, a copy of which he annexed thereto.
By the writ it appears that the process was issued from the District Court for the Eastern district of Wisconsin, directed to the marshal for the district of Massachusetts, or his deputy, or either of them, directing them to take Dexter and others mentioned, if found in the Massachusetts district, and have them before the court for the Eastern district of Wisconsin, that they might be dealt with according to law. It recites that Dexter and others named in the writ had been adjudged guilty of contempt of the District Court in Wisconsin, in that they had violated the injunctional order of the court of August 9, 1916, in a case therein pending, entitled 'North American Chemical Company and George H. Maxwell, Plaintiffs, v. Alvin S. Dexter, Dexter Manufacturing Company, Fibrehide Filler Company, Braintree Rubber Cement Company, Joseph E. Peckham, A. B. Alden, Henry G. Halloran and Harry Wilson, Defendants'; that the court issued a writ of attachment for the arrest of said persons, directed to the marshal of the Western district of Wisconsin, requiring them to be brought before the court; that the marshal made a return upon the writ that he was unable to find said persons within his district, and that he believed them to reside in or near Boston, in the Massachusetts district, and could there be found.
In the court below it was assumed, for the purposes of the case, that the contempt proceeding, instituted in the District Court of Wisconsin for the violation of the injunctional order, was criminal; and it was held that section 262 of the Judicial Code (R.S. Sec. 716 (Comp. St. 1916, Sec. 1239)) did not authorize the issuance of a writ in a criminal case for the arrest of a citizen of one judicial district, while within that district, and his removal to the judicial district of another state. An order discharging the petitioner was entered, and this appeal was taken.
In the argument of the case upon this appeal, it was conceded that, if the contempt proceeding was civil in nature, the court did not err in discharging the petitioner. Judicial Code, Sec. 51; R.S. Sec. 739 (Comp. St. 1916, Sec. 1033); Toland v. Sprague, 12 Pet. 300, 328-330, 9 L.Ed. 1093; Ex parte Graham, Fed. Cas. No. 5,657; Picquet v. Swan, Fed. Cas. No. 11,134. But it was contended on behalf of the appellant that the proceeding was criminal in nature, and the District Court for Wisconsin was authorized to issue its writ to the marshal of Massachusetts for the arrest and removal of Dexter to Wisconsin under the authority conferred by section 262 of the Judicial Code (R.S. Sec. 716).
As bearing upon the nature and purpose of the contempt proceeding, evidence was introduced from which it appeared that the original proceeding in which the injunctional order was made was an equity suit numbered 684, brought by the North American Chemical Company and George H. Maxwell against Alvin S. Dexter, Dexter Manufacturing Company, Fibrehide Filler Company, Braintree Rubber Cement Company, Joseph E Pcckham, A. B. Alden, Henry G. Halloran, and Harry Wilson, alleging infringement of certain letters patent; that the contempt proceeding originated in a petition brought by the North American Chemical Company and George H. Maxwell against the defendants named in the equity suit; that the petition was also numbered 684 and filed in said suit; that it contained a recital setting forth the proceedings in the equity suit, to wit, the appearance and answers of the defendants and the injunctional order, and alleged that the defendants, in disregard and defiance of the injunction and in contempt of the authority of the court, had continued to infringe the letters patent. In the concluding paragraph the petitioners prayed that the defendants be ordered to appear before the court and show cause why they 'should not be attached and punished for contempt of court' for violating the injunction. Upon the petition being filed an order was issued, also numbered 684 and entitled as of the equity suit, directing the defendants to appear before the court to show cause 'why they should not be attached and punished for contempt of court,' and that the defendants be served with a copy of the petition and order. The petition and order to show cause having been served, an order was entered on the 14th day of October, 1916, entitled as of the equity suit, directing the defendants to answer or demur to the petition not later than October 18, 1916, and that a hearing be had thereon October 28, 1916. Answers to the petition, entitled as of the equity suit, were filed in said cause on the 18th and 20th of October, 1916; and on October 25, 1916, a notice, entitled as of the equity suit and signed by the 'solicitors' for the plaintiffs, was addressed to the 'solicitors' for the defendants, notifying them that on October 28th, they should call up for hearing and disposition before the court 'the petition and the answer thereto in the contempt proceedings now pending in said cause, and that we shall read in support of said petition the depositions of Joseph E. Peckham, Henry G. Halloran, and Alvin S. Dexter on file in said cause, and shall call and examine as witness, Harry Wilson, one of the defendants in said cause, and shall read in support of said petition the affidavits of Oliver D. Hogue and Frank O. Hatch. ' Under date of October 28, 1916, an order was entered, entitled as of the equity suit, in which it...
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