People v. Henry

• Decision Date: 26 June 1970
• Docket Number: No. 1,Docket No. 8329,1
• Citation: 181 N.W.2d 64,25 Mich.App. 45
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Milton R. HENRY, Respondent-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 64

181 N.W.2d 64

25 Mich.App. 45

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Milton R. HENRY, Respondent-Appellant.

Docket No. 8329.

Court of Appeals of Michigan, Division No. 1.

June 26, 1970.

Rehearing Denied Aug. 5, 1970.

Released for Publication Nov. 20, 1970.

Leave to Appeal Denied Sept. 24, 1970.

Milton R. Henry, Pontiac, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Detroit, for appellee.

Before QUINN, P.J. and BURNS and O'HARA, ^* JJ.

O'HARA, Judge.

On July 31, 1969, Detroit Recorder's Court Judge Joseph A. Gillis issued the following order to show cause:

This Order to Show Cause is brought and initiated by the Court of its own Motion based upon the attached Affidavit of official court clerk, Robert Herbertson, and further based upon the Court's own knowledge of the fact that Respondent herein did not appear to try the case of People VS Otis Fenderson, although he is and was Attorney of Record for the defendant herein, and had previously secured an adjournment from the Court in the said case. That the Court has examined the file and knows that attorney Henry was duly notified of the date and time of trial. The Court also was personally present each time the case was called and knows that Respondent did not answer the Call, nor did he appear either on July 28th, 1969, the first trial date, nor on the adjourned trial date, July 29th, 1969 at any time during the Court's session.

'The cause is initiated by the Court pursuant to GCR (1963), 760 and CL 1948, § 600.1701 following.

'IT IS THEREFORE ORDERED and the Court does Order that Milton R. Henry, attorney, named Respondent herein, appear on Friday, August 29th, 1969 in the courtroom of Judge Joseph A. Gillis, Judge of Recorder's Court on the fourth floor of the Recorder's Court Building, 1321 St. Antoine Street, Detroit, Michigan 48226, and there show cause why he should not be punished for his contempt.

'The contempt charged herein is Respondent's willful neglect as an attorney to appear in Court and try the case No. A--140653, where he is Attorney of Record, and which case was to his knowledge set for trial on July 28th and again adjourned to July 29th, 1969. That the failure of Respondent to so appear and try the case resulted in a disruption of Court process and orderly procedure. That it also resulted in further congestion of an already crowded Docket. That it became necessary because of Respondent's 'failure to appear to adjourn the case although the People and their witnesses were present, ready for trial, as was the Defendant herein, who is and was this Respondent's client. That these facts indicate the contempt for orderly Court procedure as exhibited by this Respondent.

'That failure to appear at the time and place set will result in the issuance of an Order of Arrest for said Respondent because of such failure.'

The following affidavit of Robert Herbertson was attached to the order:

'ROBERT HERBERTSON, being duly sworn, says that he is the official Courtroom Clerk attached to the courtroom of the Honorable Joseph A. Gillis, a Judge of Recorder's Court, and that as such clerk, one of his official duties is the calling of cases ready for trial, and the making of notations concerning the progress of cases assigned for any reason to Judge Gillis.

'He is familiar with the case of People v. Otis Fenderson, number A--140653. That to his knowledge the attorney of record for defendant in that case is one Milton R. Henry, who filed his Appearance on July 25th, 1968, which Appearance is in the file. That in said Notice of Appearance, which is signed by Milton R. Henry, his address is given as 518 Orchard Avenue, Pontiac, Michigan, zip code 48053, telephone number FE 4--5823. That said case has Affiant's notations on the file show, was originally set for 10--21--68 and adjourned at the request of Mr. Henry, who was in a trial elsewhere. That an examination of the file shows that a formal notice that the case was assigned to Judge Gillis to be tried on Monday, July 28, 1969 at 9 o'clock is in the file, which notice added that there would be no adjournments granted except upon order of the Presiding Judge 'for a contingency which could not have been anticipated.' That the inside cover of the file shows that said Notice was given to Mr. Henry 7--1--69 by deputy clerk, R. Jones. That on Monday, July 28th, Affiant called the case for trial. That the Prosecutor and People's witnesses were present, and the defendant, himself was present, but his attorney did not appear, although Affiant called the case several times. That defendant stated that he had been contacted by Mr. Henry and told that the case would be tried on July 28th.

'Affiant also states that he sent a telegram to attorney Henry at the address given on his Notice of Appearance stating that the case was adjourned until Tuesday, July 29, 1969, and that he was to appear. That when the case was again called, and the People were ready for trial on Tuesday, July 29th, attorney Henry neither appeared nor did he send a reply. That Affiant is informed and believes that attorney Henry was actually in the Court building on July 30th but did not come to Judge Gillis' Court nor send a representative.'

A hearing on the contempt order was held before Judge Gillis on August 29, 1969. At the conclusion thereof, respondent was convicted of contempt and sentenced to fifteen days in jail, to be served on successive weekends. The execution of the sentence was stayed pending appeal.

It is worthy of note that respondent, who was scheduled to appear before this court and argue orally in his own behalf, failed once again to be present.

In deciding the case as if submitted on briefs, the initial question presented is whether the trial court had proper jurisdiction to order respondent to show cause why he should not be held in contempt. Prefatorily, we note the inappropriateness of the allegation by the amicus curiae that respondent, by taking the stand and testifying in his own defense to the charges specified in the affidavit, waived 'all irregularities in initiating the proceedings.' In re McHugh (1908), 152 Mich. 505, 511, 116 N.W. 459. In that case, the court stated at 510--512, 116 N.W. at 461:

'The first legal question presented is that the acts constituting the contempt were not committed in the presence of the court, and no petition or affidavit was presented to the court as a foundation for the proceedings. Upon this point many authorities are cited by counsel for the people and for the respondents. It is unnecessary to determine this question. The respondents voluntarily appeared in court, and were given the same opportunity to make their defense that they would have had upon the filing of a petition or affidavit and the issuance of an order to show cause. They were not seized upon the capias, but came directly from a foreign country into the court, and voluntarily submitted to its jurisdiction. It should require no argument to show that they had waived all irregularities in initiating the proceedings.

'If the respondents had refused to appear in court, as was the case in (In) Re Wood (1890), 82 Mich. 75, 45 N.W. 1113, or if they had been arrested upon the capias and had denied the jurisdiction of the court for the reason that no affidavit or petition was presented to the court setting forth the facts, the respondents would have been in position to raise this question, but their conduct waived it. They voluntarily placed themselves in precisely the same position as they would have been if the proceeding had been such as they now contend was necessary.'

The above holding was followed in In re Huff (1958), 352 Mich. 402, 91 N.W.2d 613. In neither of these cases, however, did the alleged contemnor specifically challenge, at the time of his appearance, the jurisdiction of the court. In this case, respondent strenuously objected to the jurisdiction of the court, not only as to the initiatory process, but as to the validity of the affidavit. Clearly, in this case, there was no waiver.

M.C.L.A. § 600.1701 (Stat.Ann.1962 Rev. § 27A.1701) provides:

'Supreme court, circuit courts, and all other courts of record, have power to punish by fine or imprisonment, or both, persons guilty of any neglect or violation of duty or misconduct in the following cases:

'(3) All attorneys, counselors, clerks, registers, sheriffs, coroners, and all other persons in any manner duly elected or appointed to perform any judicial or ministerial services, For any misbehavior in their office or trust, or for any willful neglect or violation of duty, for disobedience of any process of the court, or any lawful order of the court, or any lawful order of a judge of the court or of any officer authorized to perform the duties of the judge.'

(Emphasis supplied.)

The above statute is supplemented by GCR 1963, 760. Rule 760.1 reads:

'1. Initiation of Proceeding. For contempts not committed in the immediate view and presence of the court, Upon a proper showing on ex parte motion supported by affidavits, the court shall either order the accused party to show cause at some reasonable time, to be therein specified, why he should not be punished for the alleged misconduct, or shall issue a bench warrant for the arrest of such party.' (Emphasis supplied.)

Since Michigan has adopted the majority view that an attorney's tardiness or absence constitutes a contempt 'not committed in the immediate view and presence of the court' (See In re McHugh (1908), 152 Mich. 505, 116 N.W. 459; Annotation, 97 A.L.R.2d 431, 435, 460), the foundation for this type of contempt proceeding must be laid by affidavit. GCR 1963, 760.1; In re Scott (1955), 342 Mich. 614, 71 N.W.2d 71. Absent a valid affidavit, no jurisdiction attaches. In re Wood (1890), 82 Mich. 75, 45 N.W. 1113; Russell v. Wayne Circuit Judge (1904), 136 Mich. 624, 99...