Sona v. Aluminum Castings Co.

• Decision Date: 13 June 1914
• Docket Number: 2459.
• Citation: 214 F. 936
• Parties: SONA et al. v. ALUMINUM CASTINGS CO.
• Court: U.S. Court of Appeals — Sixth Circuit

214 F. 936

SONA et al. v. ALUMINUM CASTINGS CO.

No. 2459.

United States Court of Appeals, Sixth Circuit.

June 13, 1914

W. H Gallagher, of Detroit, Mich., for plaintiffs in error.

S. R Williams, of Detroit, Mich., for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

PER CURIAM.

Plaintiffs in error, herein called respondents, were each convicted of contempt in violating, the one a restraining order, the order the restraining order and preliminary injunction issued by the court below in a strike suit in which defendant in error was complainant and a local of the International Moulders' Union and several others including respondent Sudsinski, were defendants. Sona was not a party to the suit. The order under review, which was in a single entry, found That Sona had notice of the issuance of the restraining order and that Sudsinski was served with both the restraining order and the injunction. That Sona, after such notice, assaulted a named employe of complainant at a certain time and place 'and did him serious bodily harm,' and that 'such conduct on the part of said Sona was a * * * contempt of this court ' That Sudsinski, while guilty of committing no assault, had, with Sona and others to the court unknown, been from time to time prior to the date referred to 'guilty of picketing, impeding, and obstructing the streets, alleys, and approaches of the premises of the complainant company in such a manner as to intimidate, threaten, impede, and obstruct the employes of said company,' and that 'his conduct * * * has been a contempt of the court. * * * ' Each respondent received sentence of imprisonment.

The decisive questions are: First, whether the preliminary showing made was a sufficient basis for the order for arrest and for the writ issued thereon, and gave the court jurisdiction over the proceedings; second, whether the court erred in finding Sudsinski guilty upon the evidence submitted.

1. There was filed, as basis for the order for arrest, an unsworn petition of complaint, through its solicitors, charging both respondents with having assaulted four named employes of the petitioner and with 'picketing,' impeding, and obstructing the streets, alleys, and approaches of plaintiff's premises in such manner as to intimidate, threaten, impede, and obstruct petitioner's employes.

The acts charged in the petition were clearly forbidden by both the restraining order and the injunction. There was also filed with the petition the sworn affidavit of a detective that on a date named both respondents were walking back and forth in front of one of petitioner's plants in company with from 75 to 100 other strikers; and that almost daily since the strike was declared he had seen Sudsinski (whom affiant alleged to be one of the most prominent of the men who regularly did picket duty at this plant), usually accompanied by several other strikers in the vicinity of that plant, walking back and forth in front of it at about the same time the employes of the plant were coming to their work or leaving the factory for their homes. There was also filed at the same time and in the same connection the sworn affidavits of three of the employes alleged in the petition to have been assaulted by respondents, each of whom testified that he was assaulted when in company with the other three, and that each saw one or more of his companions assaulted at the same time and place. Neither of the four gave the names of the assailants, but each stated that he would recognize those who made certain of the assaults, although not knowing their names.

Respondents contend that process of arrest for contempt, not committed in the court's presence, can properly issue only upon the filing of affidavit stating positively the facts and in such way as prima facie to show the commission of a contempt. This is the generally recognized rule, and, for the purpose of this opinion, we may assume, without deciding, that had objection to the sufficiency of the showing been made before going to trial, the objection would have been good. There was a motion to dismiss the proceedings because the petition was not served upon respondents or their counsel. The petition was in fact actually filed, but seems to have escaped counsel's notice. The assignment relating to this point was not argued in respondent's brief, and we understand is not relied upon.

Indeed, it could not well be, for the failure to serve could, at most, have been ground for continuance only, which was not finally insisted upon. But respondents did not challenge the jurisdiction of the court in any way before going to trial on the ground of an insufficient preliminary showing, or otherwise. Indeed, this objection is not raised by any assignment of error, and we can consider it only by virtue of our rule No. 11 (202 F. viii, 18 C.C.A. x), which permits, but does not require, the court to consider a 'plain error not assigned.'

Had the petition been sworn to, the showing clearly would have been sufficient basis for the process of arrest of both respondents on both charges. Respondents contend, however, that the requirement of showing by sworn affidavit cannot be waived. The authorities cited in support of this proposition do not sustain it; in the case of several of them, no question of waiver is shown by the reported decision to have been in any way presented. ^[1]

In others it affirmatively appears that the sufficiency of the case made by the moving papers was seasonably challenged, although none of them involved the weight to be given an unsworn petition. ^[2] Respondents were unquestionably entitled to be informed of the charge made against them, and so clearly and definitely as not only to show prima facie a case against them, but that when arraigned they might know what answer to make and to enable them to prepare their defense. Gompers v. Buck's Stove & Range Co., 221 U.S. 446, 31 Sup.Ct. 492, 55 L.Ed. 797, 34 L.R.A.(N.S.) 874; U.S. v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588. But we think it the rule, amply supported by authority, that by failing, before going to trial, to object to the preliminary showing made as insufficient, the alleged defect was waived

In People v. Court of Sessions, 147 N.Y. 290, 41 N.E. 700, to an objection that the court obtained no jurisdiction to punish for contempt because the affidavit on which the order to show cause issued was made wholly on information and belief and for other insufficiencies, it was replied:

'The court undoubtedly obtained jurisdiction of the appellants when they appeared before it and were charged with the contempt. The only office of the order to show cause was to bring them before the court; and, if it was issued on an insufficient affidavit, they must now be deemed to have waived the defect by their personal appearance and answer.'

In Aaron v. U.S. (C.C.A. 8th Cir.) 155 F. 833, 836, 84 C.C.A. 67, 70, it was held that an information in a proceeding for contempt is sufficient if it clearly apprises the defendant of the nature of the charge against him, and that no particular form is essential; the court saying:

'If the information for the writ was defective in matter of form, it should have been taken advantage of by the defendant in proper manner by motion before going to trial. Where the party charged with the contempt appears without objection to the sufficiency of the information and affidavits by appropriate motion, and answers and goes to trial, the objection is deemed as waived.'

The petition in that case was attacked as insufficient, among other reasons for failing to recite the terms of the injunction order alleged to have been disobeyed, and it was said that, as the defendant was alleged to have been a party to the injunction order and appeared thereto, he was sufficiently advised of the provisions thereof.

In Morehouse v. Giant Powder Co. (C.C.A. 9th Cir.) 206 F. 24, 124 C.C.A. 158, the Aaron Case was cited to the proposition that, in the absence of an objection in limine, the papers are sufficient if they clearly apprise defendant of the nature of the charge.

In Re Deaton, 105 N.C. 59, 11 S.E. 244, it was...