Shotkin v. Atchison, T. & S. F. R. Co., 16679

• Decision Date: 14 August 1951
• Docket Number: No. 16679,16679
• Citation: 124 Colo. 141,235 P.2d 990
• Parties: SHOTKIN v. ATCHISON, T. & S. F. R. CO. et al.
• Court: Colorado Supreme Court

Page 990

235 P.2d 990

124 Colo. 141

SHOTKIN v. ATCHISON, T. & S. F. R. CO. et al.

No. 16679.

Supreme Court of Colorado, en Banc.

Aug. 14, 1951.

Rehearing Denied Sept. 4, 1951.

Bernard M. Shotkin, pro se.

Grant, Shafroth & Toll and Charles H. Haines, Jr., Denver, for respondent, Atchison, T. & S. F. R. Co.

Anthony F. Zarlengo, Denver, for respondent, Hon. William A. Black, Judge of the District Court, Division 4, City and County of Denver.

JACKSON, Chief Justice.

Ber*vnard M. Shotkin, describing himself as 'appellant and petitioner,' comes here seeking relief, under Rule 113(b), R.C.P.Colo., from an order of the trial court holding him in contempt, fining him $1,000, and sentencing him to sixty days in the county jail. The trial court, in answer to our rule to show cause, has filed reporter's transcript of the proceedings leading up to the judgment and sentence.

From an examination of this record it appears that petitioner, in a jury trial in which the railroad company was seeking judgment against petitioner defendant as an individual, sought to intervene under Rule 24(a), R.C.P.Colo., as the 'father and nearest friend' of his three minor children 'for whom he is trading as 'Edison Power & Light Company,' and 'Power & Light Company,' and files their complaint against the plaintiff, the Atchison, Topeka and Santa Fe Railway Company.'

At the time this petition in intervention was filed, April 24, 1951, the trial court indicated that Shotkin was in contempt because of having violated the rules laid down in our opinion in Shotkin v. Lindsley, 118 Colo. 223, 193 P.2d 880. That case was in turn based upon Shotkin v. Kaplan, 116 Colo. 295, 180 P.2d 1021, 1022. In the latter case we ordered, inter alia, '(4) that thenceforth Shotkin, appearing other than by counsel, shall desist from instituting actions in Colorado state trial courts, and from prosecuting writs of error here; (5) that all cases pending at nisi prius, or here, in which Shotkin is plaintiff or plaintiff in error, and appears pro se, and in which he does not proceed reasonably to employ counsel to represent him, shall be subject to dismissal.'

The trial court thereupon entered certain orders respecting the matters in litigation which are not pertinent here, and indicated that the contempt portion of the case would be continued until the following morning at 9:30 a. m., and orally ordered Shotkin to appear at that time. Shotkin failed to appear the following morning as ordered, but had sent to the trial court a Western Union night letter, by personal delivery, dated April 25, 1951, 3:56 a. m., reading as follows:

'Will be unable to appear at Santa Fe hearing today 930 Wednesday as I am ill and I am obeying doctors orders to leave for lower altitude for at least 6 months respectfully.

'Bernard M. Shotkin 1110 17th St. Denver.'

Shokin having failed to appear, the court thereupon, on April 25, 1951, entered a bench order reciting the foregoing facts and proceeded to adjudge Shotkin in contempt as provided in Rule 107(b), R.C.P.Colo. The finding was that there was contempt in the presence of the court because of his violation of our order in Shotkin v. Lindsley, supra. The trial court also found Shotkin guilty of contempt of court for failure to appear as ordered. Up to the time of filing this petition of intervention, Shotkin had been appearing pro se as defendant.

The concluding sentence of the petition in intervention, written in freehand following the typewritten portion, reads as follows: 'That as he is unable to secure an attorney to represent himself or these minors he prays the court to appoint [a named lawyer] to represent these minors in this case, and set a nominal fee.'

Petitioner appears to have neglected to file any specifications of points, as such, but argues that the trial court could not find him guilty of contempt for two reasons:

(1) Only this court which, as above shown, has laid down the foregoing restrictions on his court appearances had jurisdiction to hold him in contempt. In support of this contention he cites various cases, all of which relate to the situation where a trial court other than the one having jurisdiction of the case has attempted to hold one of the parties in contempt. Under such circumstances it has uniformly been held that only the court having jurisdiction of the case can hold one or more of the parties in contempt. State ex rel. Sherman v. Thomas, 128 Fla. 231, 174 So. 413; Ex parte Gonzalez, 111 Tex. 399, 238 S.W. 635; Dale v. State, 198 Ind. 110, 150 N.E. 781, 49 A.L.R. 647. A case in which the author of the opinion discusses the situation here involved is Roberts v. Montgomery, 117 Ohio St. 400, 159 N.E. 475, 476, in which we find the following:

'However, it may be stated that each court of the state is an integral part of a single judicial system, and, in theory, and, generally speaking, in practice, no two integral parts of the system will at the same time exercise jurisdiction over the same persons and the same subject-matter; that, where the jurisdiction of the one begins, the jurisdiction of the other ends.

'In accordance with this theory the former pronouncements of this court, and the general practice, we reach the conclusion that, regardless of whether the jurisdiction to remand is impliedly conferred upon this court by the Constitution or is conferred by statutory law, when this court remands a cause for execution it relinquishes its jurisdiction in that respect to the court of remand, and thus confusion of jurisdiction and duplication of effort is obviated; that, if its judgment or final order, with the execution of which the court of remand is charged, be such that a failure of compliance therewith amounts to contempt, the jurisdiction to entertain an application for an order upon the offending party to...