Rodberg v. Lamachinsky

• Decision Date: 22 May 1909
• Citation: 74 A. 44
• Parties: RODBERG v. LAMACHINSKY.
• Court: New Jersey Court of Chancery

74 A. 44

RODBERG

v. LAMACHINSKY.

Court of Chancery of New Jersey.

May 22, 1909.

Action by one Rodberg against one Lamachinsky. On motion for attachment for contempt. Granted.

F. W. Fort, for complainant.

HOWELL, V. C. In this case an injunction was issued to enjoin the defendant from violating a covenant which he had made in restraint of trade. The writ was served upon him personally and in accordance with the practice. Shortly thereafter complaint was made to the court that he had violated the command of the writ, and an order was entered requiring him to show cause why he should not be adjudged guilty of contempt. Counsel appeared for him on this hearing, and he was adjudged to have violated the mandate of the writ, and, by way of punishment, to pay the costs of the proceeding. The proceeding took place wholly before one of the Vice Chancellors, and the defendant in open court waived any right that he might have had to have the matter reheard by the Chancellor in person. Certified copies of the order making this adjudication and of the taxed costs in pursuance thereof were served personally on the defendant, and he has hitherto neglected and refused to pay the same. Application is now made to attach him for contempt in neglecting and refusing to pay costs, and the question arises whether the proceeding should be by attachment or by an order committing him to prison.

These two methods of proceeding in contempt cases have subsisted side by side in our equity practice for many years. Generally speaking, the proceeding has been by way of order to show cause to such an extent that proceedings by way of attachment are very little resorted to, and the old proceeding by committal almost entirely forgotten. Sir George Jessel, in Sprunt v. Pugh, [1878] 7 C. D. 567, says that for most practical purposes the former distinction between attachment and committal has been abolished, and in Reg. v. County Court Judge, [1888] 36 W. R. 476, Mr. justice Wills said that there was no practical difference between committal and attachment. "One was enforced by the tipstaff of the court, and the other by the sheriff. That is all the distinction, and it comes to little, if anything." I do not find any case in our state in which the distinction is pointed out or recognized.

In certain cases it may be very important to differentiate between attachment and committal, for the reason that there is an inherent difference in the preliminary and other proceedings. In the case of an attachment out of chancery, the writ may issue on proper proofs without notice to the respondent (provided he has been served with subpoena), although the court may in its discretion require notice. The writ is bailable. It is always executed by the sheriff, and is directed to the sheriff of that county in which the respondent is, and must include all parties liable to the attachment who are in that same county. The sheriff or his officer may break into the dwelling house of the respondent to execute the writ. The subsequent proceedings appear by rule 133 et seq. They end in a warrant for commitment.

The ordinary proceeding by committal had none of these formalities. It was begun under the old practice by taking an order, upon proper affidavits, directing that the respondent stand committed for his contempt, specifying the nature of it, unless he should at a time and place named appear before the court and purge himself of the charge. This order was served personally on the alleged contemner, and if at the return day he did not make sufficient answer the order was merely made absolute, and the respondent was imprisoned or fined according to its terms. If the accused appeared, he was heard in any way that suited the convenience of the court—by an examination ore tenus, upon affidavits, or by propounding interrogatories. If he denied the contempt, the court, either for itself or by reference to a master, ascertained the fact upon the proof, either party examining witnesses by affidavit or otherwise. U. S. v. Anon. (C. C.) 21 Fed. 761. The order of committal was a final order, and was not bailable. It might be executed by the sheriff of the county, or by the sergeant at arms, or one of the ushers of the court, who might be appointed pro hac vice.

The apparent dissimilarity between these proceedings leads to an inquiry into their origin, and whether, after all, there is such a substantial difference as to make it necessary to follow the one or the other in any particular case. The question has been examined by the English Chancery Division in recent years, and the conclusion reached that there formerly was a distinction there between the two which was material in certain classes of cases. In Callow v. Young, [1887] 56 L. J. Ch. 690, there was a motion for leave to issue an attachment against the defendant for his contempt in disobeying an order made on a motion for an interim injunction which forbade the defendant to carry on a certain business. It was objected that the proper proceeding was not by attachment, but by committal, concerning which Mr. Justice Chitty says: "Under the old practice, as well as under the present practice, in order to obtain an order for committal, notice of motion must be served on the respondent; but under the old practice it was not necessary to serve notice of motion for attachment. Attachment issued at the instance of the party aggrieved, and at his own risk. But since the judicature acts the old practice has been altered, owing, probably, to the abolition of imprisonment for debt and to abuses arising from it. The rule now is that notice of motion must be served on the party sought to be attached. In this respect, therefore, attachment and committal stand on the same footing; for neither can be obtained without notice of motion. The former distinction between committal and attachment was this: Committal was the proper remedy for doing a prohibited act, and attachment was the proper remedy for neglecting to do some act ordered to be done."

The practice was likewise examined by the Court of Appeals in the case of Evans v. Noton, [1893] 1 Ch. 252, 62 L. J. Ch. 413, where it was held that an order for a writ of attachment might be made without notice personally served on the respondent. In D. v. A. & Co., [1900] 69 L. J. Ch. 382, it was held that notice of motion for committal must be personally served, and as to the distinction between the two proceedings Mr. Justice Cozens-Hardy says: "According to the old law an order of the court for the committal of the defendant was the proper remedy for...