Wells v. Commonwealth

• Decision Date: 13 November 1871
• Citation: 62 Va. 500
• Parties: WELLS v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

62 Va. 500

WELLS v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

November 13, 1871

1. An appeal may be taken to the court of Appeals from the judgment of a Circuit court imposing a fine upon a person for a contempt of the court, in aiding to obstruct the execution of a decree of the court.

2. Where a rule is made upon a person to show cause why he shall not be punished for a contempt of the court, in aiding to obstruct the execution of a decree of the court, he purges himself of the contempt, by answering under oath, that in what he had done he acted as counsel in good faith, without any design, wish or expectation of committing any contempt of, or offering disrespect to, the court.

3. The duty of an attorney to his client cannot conflict with his obligation to demean himself honestly in the practice of the law, or to be faithful to his country. But if he acts in good faith, and demeans himself honestly, he is not responsible for an error in judgment.

In April 1867, James P. McCabe and others obtained against Thorpe H. Nance, in the Circuit court of Bedford county decrees for moneys which he owed as guardian; and in July 1869, they filed their bill in said court, to enforce the lien of their decrees upon a tract of land in the possession of Nance. On the 2d of May 1870, a decree was made in the cause appointing commissioners to sell the land; and on the 20th of August they made the sale, when Nance became the purchaser, but failed to comply with the terms of sale; and on the 17th of September it was again sold; when James P McCabe became the purchaser.

It appears that in May 1868, Thorpe H. Nance filed his petition in bankruptcy; and that he surrendered his estate, subject to the liens upon it; and that this property, except a small quantity of personalty set apart for him, was sold by his assignees, subject to the liens, for the gross sum of forty-five dollars, and was purchased for Nance.

On the 27th of September 1870, Thorpe H. Nance filed his petition in the court of bankruptcy, in which, after stating his application for his discharge in bankruptcy, he says the liens upon his property have not been adjusted or settled under the decree of the District court in bankruptcy; but that the holders of these liens have, since the filing his petition, proceeded in the Circuit court of Bedford, to enforce the said decrees; and to that end has procured an order for the sale of a part of said property, to wit: the homestead of the petitioner, consisting of two hundred and seventy-six acres; and commissioners had sold the same at public auction on the 17th of September 1870; and that they intended to move at the October term of the said court for a confirmation of said sale. He insists that he was entitled to a further exemption out of said property, and also to have his homestead set off to him out of the property sold. He insists that the legal title to the land vested in his assignees, and the creditors only had liens upon it; and if sold for its value it would bring double the amount of the liens. And he prays that the commissioners and the creditors naming them, may be by the order of the District court enjoined and restrained from any other or further proceeding to sell said property, and from seeking to enforce and confirm said sale; and that the said creditors be required to settle their claims against him in the court of bankruptcy. That his homestead may be assigned to him, and that the remainder of his said estate may be sold by his assignees and the proceeds applied to the payment of his debts.

The order of injunction was granted: and the judge of the Circuit court of Bedford, at its October term 1870, made a rule upon Nance to show cause why he should not be punished for his contempt of that court, in attempting to defeat the decree aforesaid for the sale of the land, by means of his application to the District court, and obtaining the said injunction, & c. And Nance having appeared and filed his answer to the rule, the court held that the answer was not satisfactory, and adjudged and ordered that Nance be fined fifty dollars for the use of the Commonwealth, and be attached and imprisoned in the jail of the county of Bedford for ten days, and until he should pay said fine and the costs of the rule, and dismiss his petition and injunction in the District court.

And it appearing that Henry H. Wells of the city of Richmond, counseled and aided Nance in procuring said injunction from the District court, and in said attempt to resist the lawful decree of this court, as aforesaid, it was ordered that Henry H. Wells be summoned to appear before the court on the third day of the next term, to show cause, if any he can, why he should not be fined and attached for his said contempt.

Wells appeared and filed his answer to the rule. He says he was counsel practising in the courts of the United States; and that he was employed by Nance, then a petitioner in bankruptcy in the District court of the United States for the district of Virginia, to appear for him in that court. That from the facts stated to him by Nance, he believed the said District court had jurisdiction to grant an exemption to said Nance, and to settle all liens and priority of liens, upon the estate of the bankrupt, and generally to compel all holders of liens and claimants to appear and have their rights adjudicated in said court under the law of Congress known as the bankrupt act; and the respondent did so advise said Nance, and did as such counsel, for the purposes therein stated, prepare and deliver to said Nance a petition to be by him sworn to and presented to the judge of the said District court: and he sets out the petition at length. All of which he avers was done for, and as the counsel of Nance, and in the discharge of his professional duty, and in good faith, without any design, wish or expectation of committing any contempt, or of offering any disrespect, to the Circuit court of Bedford county; but solely that the said Nance might avail himself of what this respondent believed to be his legal rights, by the use of the usual and ordinary methods of legal procedure in a court of competent jurisdiction.

On the 9th of May 1871, the case came on to be heard upon the rule, when the court held that Wells had been guilty of a contempt of the lawful authority and jurisdiction of the Circuit court of Bedford, and for his contempt he was fined the sum of fifty dollars for the use of the Commonwealth. And from this order Wells applied to a judge of this court for a writ of error, which was allowed.

Wm. Green, for the appellant.

The Attorney General, for the Commonwealth.

OPINION

ANDERSON, J.

The first question which meets us in this case, is as to the jurisdiction of this court to review the judgment or sentence of the Circuit court complained of. The power to fine and imprison for contempt is incident to every court of record. The courts ex necessitate rei, have the power of protecting the administration of justice, with a promptitude calculated to meet the exigency of the particular case. Clement's case, 11 Price R. 68. Even peers, and persons having privilege of Parliament, enjoy no exemption in this respect. 1 Burr. R. 631, Rex v. Earl Ferrers. And where it is not otherwise provided by statute, " the sole adjudication of contempt, and the punishment thereof belongs exclusively, and without interference, to each respective court," is the language of Mr. Justice Blackstone, approved by Judge Story in ex parte Kearney, 7 Wheat. R. 38, 44. A commitment for contempt is a commitment in execution, and the judgment of conviction, unless the power to supervise is given by statute, is not subject to review in any other court; not...