Norstrom v. Wahl, 4288.
| Decision Date | 30 June 1930 |
| Docket Number | No. 4288.,4288. |
| Citation | 41 F.2d 910 |
| Parties | NORSTROM v. WAHL. |
| Court | U.S. Court of Appeals — Seventh Circuit |
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Carl V. Wisner, of Chicago, Ill., for appellant.
Max W. Zabel, of Chicago, Ill., for appellee.
Before ALSCHULER, EVANS, and PAGE, Circuit Judges.
It is important to classify the proceeding here — whether for civil or criminal contempt, or both — since the order for payment to the United States of part of the fine imposed can be supported only in a proceeding for criminal contempt, and for payment of part to the plaintiff only in one for a civil contempt. In considering the question, one turns to the exhaustive discussion of civil and criminal contempts as found in Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874. The opinion, from page 440 of 221 U. S., 31 S. Ct. 492, 499, on, is devoted to elucidating the distinction between civil and criminal contempts.
Here, as there, the entire proceeding and each and every step therein, including the final order of the court, is entitled in the equity cause out of which the alleged contempt arose, and was instituted and conducted by the counsel for appellee, and in no instance, here or in the District Court, on behalf of the United States. As to this it was said in the Gompers Case:
The Gompers Opinion refers to the usual practice of entering a rule to show cause. Here this proceeding was not followed. Although papers and orders appear to have been entitled "Rule to Show Cause," this proceeding was commenced by a notice from attorneys for plaintiff to attorneys for defendant that on a certain day "we will present to the court the accompanying motion for the commitment of the defendant for contempt of his violation of the preliminary injunction in this cause." This is surely not a motion for a rule to show cause, and no such rule was ever applied for or granted. But on October 1 there was presented to the court a motion which did not follow the notice to the effect that there would be presented a motion for defendant's commitment for contempt, etc., but the motion then presented was that he be "adjudged in contempt and be suitably penalized for violation of the Permanent Injunction heretofore granted in this cause." Had the motion followed the notice it might have been some indication that the proceedings were to be criminal. As stated in the Gompers Opinion, commitment by way of penalty for contempt of court may be imposed only where the proceeding is for criminal contempt. In the absence of a petition for a rule to show cause, or of the entry of such rule, it is at least extremely doubtful if a criminal contempt could be proceeded with or a penalty for criminal contempt imposed.
There are here the further facts, that no contempt rule was ever served on Norstrom; that after the filing of the motion on October 1 Norstrom had no opportunity to be present upon its hearing, and was not in fact present; that upon the hearing no witnesses were sworn and no evidence given other...
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