Raymor Ballroom Co. v. Buck, 3537.

• Decision Date: 15 March 1940
• Docket Number: No. 3537.,3537.
• Parties: RAYMOR BALLROOM CO. et al. v. BUCK et al.
• Court: U.S. Court of Appeals — First Circuit

110 F.2d 207 (1940)

RAYMOR BALLROOM CO. et al. v. BUCK et al.

No. 3537.

Circuit Court of Appeals, First Circuit.

March 15, 1940.

J. C. Johnston, of Boston, Mass., for appellants.

Samuel Berkett, of Boston, Mass. (Guterman & Guterman, of Boston, Mass., on the brief), for appellees.

Before MAGRUDER, Circuit Judge, and PETERS and FORD, District Judges.

MAGRUDER, Circuit Judge.

This is an appeal from a decree of civil contempt, arising out of an equity suit for copyright infringement. Buck v. Raymor Ballroom Co., D.C., 28 F.Supp. 119.

On February 14, 1938, the plaintiffs commenced in the District Court a suit in equity against the defendants Raymor Ballroom Company and Raymond J. Galvin, for copyright infringement by public performance for profit of certain musical compositions. Thereafter, on March 16, 1938, the bill of complaint was taken pro confesso as against the defendants named therein. In the final decree, entered May 9, 1938, the defendants were perpetually enjoined from further infringement; and it was further ordered and adjudged that the plaintiffs recover of the defendants the sums of $500 as damages and $100 as attorneys' fees. No appeal was taken from this decree.

So far as appears, the defendants obeyed, and have continued to obey, the injunction. Enforcement became necessary only in respect to the remaining portion of the decree, awarding money damages and costs. To this end a writ of execution in the sum of approximately $600 was issued out of the District Court on May 25, 1938. This was an appropriate process. Equity Rule 8, 226 U.S. 651, 28 U.S.C.A. following section 723; 28 U.S. C. § 377, 28 U.S.C.A. § 377; Pease v. Rathbun-Jones Engineering Co., 5 Cir., 228 F. 273, affirmed, 243 U.S. 273, 37 S.Ct. 283, 61 L.Ed. 715; Western Pocahontas Corp. v. Acord, 4 Cir., 1910, 178 F. 843.

The amount of the execution was not paid and the writ was placed in the hands of the marshal for levy. On September 17, 1938, and October 11, 1938, deputy marshals went to the corporate defendant's ballroom for this purpose. They did not succeed, due to various acts of Galvin, the treasurer and active manager of the corporation, aided and abetted by several subordinate employees, Ave Galvin Demers, a sister of the defendant Galvin, MacLean and Garnett, special policemen employed by the defendants on the ballroom premises, and one Leonard, who described his job as "a little bit of everything".

The findings of fact of the District Court, as to what occurred on the two occasions when the deputy marshals sought to make a levy of execution, are set forth in the footnote.¹

Thereafter the plaintiffs filed a petition in the District Court praying that the defendants Raymor Ballroom Company and Galvin, together with the four subordinate employees previously mentioned, be cited to show cause why they should not adjudged in contempt. In support of this petition the plaintiffs filed five affidavits setting forth with great particularity the sequence of events alleged to have taken place in the ballroom on September 17 and October 11, 1938; defendants were thereby fully and seasonably informed of the nature of the case against them and the evidence they would have to meet. There was no surprise. Citations were issued as prayed and a full hearing was held on March 1, 1939, at which testimony was offered by both sides.

The District Court's decree on the plaintiffs' petition for contempt was rendered July 12, 1939. This decree, which is now being appealed from by the Raymor Ballroom Company and Galvin, was in the following terms:

"Ordered, adjudged and decreed that the defendants Raymor Ballroom Company and Raymond J. Galvin, be and they hereby are jointly and severally ordered to pay to the clerk of this court a fine of six hundred dollars ($600) in or within ten (10) days from the date of the entry hereof; that unless such fine is paid as directed the defendant Raymond J. Galvin is to be committed to jail until the fine is paid or until further order of this court; that the clerk of this court shall pay the net amount of such fine to the plaintiffs when received by him, which amount shall be applied by the plaintiffs in reduction of the amount of the execution which has issued in this suit heretofore; and it is further

"Ordered, adjudged and decreed that the petition for contempt be, and the same hereby is dismissed as against the defendants Ave Galvin Demers, Jack Leonard, David Gannett (David Garnett) and Noah MacLean, without costs against or in favor of any of the parties, but entirely without prejudice to a prosecution for criminal contempt against the defendants Raymor Ballroom Company, Raymond J. Galvin, Ave Galvin Demers, Jack Leonard, David Garnett, Noah MacLean, or any of them."

The power of federal courts to punish for contempts, whether an "inherent" power or a power derived from the Judiciary Act of 1789, 1 Stat. 83, was limited by the Act of March 2, 1831, 4 Stat. 487, now 28 U.S.C. § 385, 28 U.S.C. A. § 385.² Bessette v. W. B. Conkey Co., 1904, 194 U.S. 324, 326-327, 24 S.Ct. 665, 48 L.Ed. 997; 37 Harv.L.Rev. 1023ff. To sustain the contempt decree in this case it must be found that the conduct of the defendants was a "resistance" to a lawful writ or process of the court, implying a willful purpose to interfere so as to prevent the execution of process. United States v. Jose, C.C., 1894, 63 F. 951, 954; Russell v. United States, 8 Cir., 1936, 86 F.2d 389, 394.

The record amply supports the findings of fact made by the court below. In vital parts, the testimony was uncontradicted. Galvin did not take the stand. It is plain that Galvin intended to forestall the execution of the process. On each occasion, the officers made known their identity to Galvin and their purpose to levy on the box office receipts if payment was not forthcoming. On September 17 Galvin sought to confuse the deputy marshal by making the false statement that the place of entertainment was no longer operated by the Raymor Ballroom Company. While he engaged the attention of the officer in his private office, one of the employees removed from the box office the bag containing the receipts. When Galvin and the officer came out of the private office, Galvin, under the nose of the officer, grabbed the receipts and made off with them. The second occasion was much like the first, though the technique varied in detail. The two special officers held on to the deputy marshal while Galvin grabbed the receipts and disappeared. Though the deputy testified that he showed them his badge and the writ of execution, we are asked to believe that the special officers made a mistake as to his identity. Be this as it may, Galvin was under no such misapprehension, and the special officers were under Galvin's direction and control. Instead of directing them to release the deputy marshal, Galvin took advantage of the situation to run off with the receipts at that juncture. The team play exhibited by the various employees on each occasion indicates a common purpose and a common inspiration.

We believe that the foregoing facts make out a flagrant case of interference to prevent the execution of process. Here the acts of interference took place in the presence of the officers and in respect to property then in view, and defeated a levy of execution immediately impending. Surely the courts are not powerless to deal with such contumacious acts as here took place; otherwise disrespect for the orderly execution of writ and process would become rampant and the efforts of court officers to discharge their duties might with impunity be turned into a burlesque. We have been referred to no cases precisely in point, but the following are suggestive; Lamb v. Cramer, 285 U.S. 217, 52 S.Ct. 315, 76 L.Ed. 715; Clay v. Waters, 8 Cir., 178 F. 385, 21 Ann.Cas. 897; Russell v. United States, 8 Cir., 86 F.2d 389; Lineker v. Dillon, D.C., 275 F. 460; In re Sowles, C.C., 41 F. 752. In Berry v. Midtown Service Corp., 2 Cir., 104 F.2d 107, 122 A.L.R. 1341, it was held not to be a contempt where a judgment debtor pending a stay of execution, by concert between its officers and officers of various affiliated corporations, undertook to make itself execution-proof by transferring its assets. The correctness of this decision need not now be examined, for the case at bar is clearly distinguishable, involving as it does direct acts of interference in the presence of officers about to levy execution.

It is clear that the proceedings under review were for civil contempt. The proceedings were instituted at the initiative of an aggrieved private party who suffered special damage on account of the contempts. McCann v. New York Stock Exchange, 2 Cir., 80 F.2d 211; In re Guzzardi, 2 Cir., 74 F.2d 671. "Reparation to an obstructed creditor, not vindication of the public justice, was the purpose of the fine, and of the fine in all its parts." Fox v. Capital Co., 299 U.S. 105, 108, 57 S.Ct. 57, 59, 81 L.Ed. 67; McCrone v. United States, 307 U.S. 61, 64, 65, 59 S.Ct. 685, 83 L.Ed. 1108; Lamb v. Cramer, 285 U.S. 217, 220, 221, 52 S.Ct. 315, 76 L.Ed. 715. The possibility of future criminal proceedings is expressly reserved in the decree.

Ample precedent sustains the power of the court, in a proceeding for civil contempt, to impose a fine payable to an aggrieved private party as compensation for the special injury he may have sustained. Lamb v. Cramer, 285 U.S. 217, 220, 221, 52 S.Ct. 315, 76 L.Ed. 715; Merchants' Stock & Grain Co. v. Board of Trade, 8 Cir., 201 F. 20, 30. See Kreplik v. Couch Patents Co., 1 Cir., 190 F. 565, 569. The provision in the decree appealed from, that the defendant Galvin is "to be committed to jail until the fine is paid or until further order of this court" is consistent with a civil contempt; the committal to jail is not punishment for a past offense by way of vindicating public justice, but a means of coercing compliance with the reparation order, an exercise of the...