Foreman v. Foreman

This matter comes before the Court on the motion of the Attorney General of the State of Utah to dismiss the appeal of L.J. Barclay upon the grounds and for the reason that the contempt sentence was criminal in nature and the State of Utah, the adverse party in such a proceeding, was not served with notice of appeal within the time allowed by law.

The facts which have a bearing on the appeal are these: L.J. Barclay was counsel for Pearl Cooper Foreman in the case ofPearl Cooper Foreman v. Otto C. Foreman. At the conclusion of the trial, the trial judge ordered that the plaintiff, Pearl Cooper Foreman, deliver certain bonds which were in the names of the plaintiff and the defendant, to the defendant, Otto C. Foreman, the delivery to be on said 15th day of February — as the Court stated it: "forthwith today." This order made orally by the Court on February 15, 1946, was never obeyed by Pearl Cooper Foreman. On February 16, 1946, Mr. Foreman obtained an order directing Mrs. Foreman to appear on February 20, 1946, and show cause why she should not be punished for contempt for, "her misconduct in failing to obey the order of said Court." On that day Pearl Cooper Foreman appeared with her counsel L.J. Barclay. Mr. George W. Latimer, counsel for Otto C. Foreman, was present and was sworn and testified to the effect that the bonds were never delivered. L.J. Barclay was then sworn and testified in effect that the bonds had been delivered to his brother, a partner, in his office February 15, 1946, and that he was not aware of that fact on the 15th. The Court directed Mr. Barclay to produce the bonds and then recessed for thirty minutes. After the bonds had been produced and delivered to Mr. Latimer, Mr. David Barclay, the partner, and Pearl Cooper Foreman were sworn and testified in defense of that failure. Both Mr. Foreman and Mrs. Foreman having rested, the following statement was made by the Court:

"Well, I have been horsed a lot of times in my lifetime, but I have never seen a woman that would sit in court — I think Mrs. Foreman has the idea that a court is for no purpose except to pull wool over the eyes. I think her counsel couldn't be as ignorant as he has appeared to be, to sit here and stipulate that money would be held, when his client — he must have known she had spent it. I think Mr. Barclay's conduct is reprehensible unbecoming a lawyer, and not gentlemanly. Therefore, I am going not only to hold this witness in contempt for failing to deliver those bonds; I sentence you thirty days in jail for not complying with the order of court. Mr. Barclay, I fine you fifty dollars for your delaying tactics in making necessary this suit and in not bringing those bonds this morning, and I order you held forthwith until you pay that money. Are you able to pay it? [This sentence was subsequently changed to $50.00 and to serve 5 days in jail, the jail sentence to be suspended upon payment of fine.]

"Mr. Barclay: No, Your Honor. May I have time?

"The Court: How long will it take?

"Mr. Barclay: May I have twenty-four hours?

"The Court: No, sir. You may have thirty minutes to pay this fine. I have been horsed a lot of times, but never so flagrantly as I have here."

Thereafter the judge of the lower court signed and filed findings of fact, conclusions of law and, "Order Convicting of Contempt," from which the following quotations are extracted.

From the Findings of Fact:

"* * * that L.J. Barclay had been informed by said plaintiff that she had disposed of some of the property prior to the hearing; that said L.J. Barclay failed and neglected to so inform the Court or the counsel for the said defendant. * * * Judge of the above entitled Court at the conclusion of the trial of the divorce proceedings, while plaintiff and her counsel were present in Court, ordered the plaintiff to deliver to said defendant or his attorney certain United States Government bonds which plaintiff had in her possession and was keeping in a safety deposit box of the Utah State National Bank of Salt Lake City, Utah; * * * that said Order provided that delivery of said bonds should be made to the defendant or his attorney on the 15th day of February, 1946; * * *

"That defendant's attorney * * * called Mr. L.J. Barclay offering to go to Mr. Barclay's office and pick up the bonds, but defendant's attorney was informed by Mr. L.J. Barclay that he did not have the bonds and that it would be useless for him to make the trip as the bonds were not available.

"That on the 16th day of February, 1946, the above entitled Court issued an Order for plaintiff to Show Cause why plaintiff should not be punished for contempt for failure to comply with the order and the same was personally served upon said plaintiff * * * requiring her to appear before the Honorable A.H. Ellett and show cause, on the 20th Day of February, 1946, at 9:30 A.M., why she should not be punished for contempt of Court for willfully failing to comply with said order.

"* * * that up to and including the time the hearing was held on the order to Show Cause, plaintiff and her attorney had refused to comply with the Court Order, and the bonds had not been delivered at the time.

"That during the hearing on the Order to Show Cause, the bonds were in the possession of the plaintiff's attorney, Mr. L.J. Barclay, at his office in the McIntyre Building in Salt Lake City, Utah, and had been since the 16th day of February, 1946; that L.J. Barclay had refused to bring the bonds with him the morning of the hearing on the Order to Show Cause; that the Court directed Mr. Barclay to produce the bonds within thirty (30) minutes and declared a recess for this purpose; and that at the expiration of the recess plaintiff's attorney did then produce forty (40) twenty-five ($25.00) dollar bonds, one (1) fifty ($50.00) dollar bond, and two (2) one hundred ($100.00) dollar bonds.

"That said bonds were delivered to the office of L.J. Barclay on the 16th day of February, 1946, and they remained in his possession from that date until the further order of the Court made on the 20th day of February, 1946; that L.J. Barclay was well aware of the order of the Court, had knowledge on the 18th day of February, 1946, that an Order to Show Cause had been issued by the above entitled Court, and yet took no action and made no effort to have the order complied with.

"That L.J. Barclay in his actions as hereinabove set forth, wilfully and deliberately interferred with and delayed the orderly conduct of the Court; wilfully and deliberately disregarded and disobeyed a lawful order of the Court, and wilfully and deliberately refused to bring the bonds to Court with him the morning of the hearing on the Order to Show Cause, well knowing that the plaintiff was to appear and make showing why she should not be punished for her failure to comply with the order to deliver the bonds, and wilfully and deliberately showed an utter disrespect for the process and order of the Court. * * *

"That at all times from the 16th day of February to the 20th day of February, 1946, L.J. Barclay was able to make delivery of the bonds delivered to him by plaintiff on February 16th, 1946."

From the Conclusions of Law:

"That L.J. Barclay has wilfully and deliberately disobeyed and refused to comply with a lawful Court order made on the 15th day of February, 1946, requiring delivery of certain United States bonds to said defendant or his attorney.

"That L.J. Barclay was at all times able to comply with the order made by the above entitled Court on the 15th of February, 1946.

"That L.J. Barclay wilfully and deliberately interferred with and delayed the orderly trial of the Order to Show Cause in the above entitled matter, and wilfully and deliberately interferred with and delayed the orderly conduct of the Court.

"That L.J. Barclay failed and refused to make a full and fair disclosure of the facts on the original Order to Show Cause held before the Honorable M.J. Bronson, on the 26th day of November, 1945.

"That L.J. Barclay is guilty of contempt of Court, and has not purged himself of said contempt.

"That certain of the contemptuous acts were committed in the presence of the Honorable A.H. Ellett, Judge of the above entitled Court.

"That L.J. Barclay be fined fifty ($50.00) dollars, and serve five (5) days in jail, the jail sentence to be suspended upon payment of the fine, and that he be committed to the custody of the Sheriff of Salt Lake County for the execution of said sentence."

Upon these findings and conclusions the Court made an "Order Convicting of Contempt," reciting many of the same facts.

The notice of appeal in this case was served only upon counsel for Mr. Foreman. No one was served for and on behalf of the State of Utah.

There is the one issue involved: Is the contempt proceedings in the nature of a civil proceeding or is it in the nature of a criminal proceeding?

We believe that Mr. Justice Stone, in the case of Lamb v.Cramer, 285 U.S. 217, at page 220, 52 S. Ct. 315, at page 316, 76 L. Ed. 715, sets out clearly and concisely 1, 2 the rule for determining the nature of such proceedings. He said:

"It is the purpose of the punishment rather, than the character of the act punished, which determines whether the proceeding is for civil or criminal contempt."

In the case of Snow v. Snow, 13 Utah 15, 43 P. 620, this Supreme Court has discussed rather thoroughly the distinctions between the two proceedings. We shall not quote that case here, but shall merely attempt to apply those principles to this case. However there are certain preliminary matters that deserve some mention. Our Code [Chapter 45 of Title 104 — Civil Procedure, see also Sec. 103-1-7 and 103-1-26] expresses no distinction between a proceeding in the nature of a civil proceeding and one in the nature of a criminal proceeding. A maximum fine of $200 is fixed and a maximum jail sentence of 30 days either or both of which may be imposed upon conviction (Sec. 104-45-10). If a party litigant suffers a loss or injury as a result of the contemptuous conduct the Court may award damages plus costs and expenses (Sec. 104-45-11). If the contempt consists of an omission to perform an act enjoined by law, which it is within the power of the accused to perform, he may be imprisoned until he shall perform, or until released by the Court (Sec. 104-45-12). Obviously, the application of these latter two sections viewed in the light of the discussion in Snow v. Snow, is civil in nature. See,Davidson v. Munsey, 29 Utah 181, 80 P. 743; also Utah Power Light Co. v. Richmond Irr. Co., 80 Utah 105, 13 P.2d 320. The fine or the incarceration ordered in conjunction with the relief afforded the litigant is considered secondary to the granting of that relief even though it has the effect of vindicating the authority of the Court. In each of these two cases, the party litigant who is the beneficiary of the Court's Order is interested in the result thereof, and in case of an appeal is interested in upholding the Court's Order in order to establish and/or satisfy his rights.

On the other hand, if the contempt judgment is merely one of fine and/or imprisonment (Sec. 104-45-10), it is considered as one to vindicate the authority of the Court — to prevent the obstruction of, interference with, or the embarrassment of the orderly process of the Court. It is considered a 3, 4 matter of interest to each of us as a citizen, but not to each of us individually as a party litigant attempting to establish his rights as such an individual. It is criminal in nature. In case of an appeal of such an order, the citizen who happens to be a litigant in the case in which the contempt occurred should not be expected to bear the burden and the expense of upholding the order of the Court, any more than any other citizen selected at random. In matters of public interest we have public officials to represent us. The litigant citizen does not desire to represent us and though we might appreciate his doing so it is a duty we should not impose upon him. The defense of such an order is a public duty, and requires the services of the proper public official. Notice of the appeal of such an order should be served upon the proper public official, that the public may have its day in court to defend the Court in its efforts to vindicate its authority.

Returning to the present case. It is obvious from a reading of the remarks of the Court, and also from a reading of its findings of fact and conclusions of law together with the sentence imposed that the sole purpose of the adjudication of contempt and the imposition of the fine was that of the 5 upholding the dignity and powers of courts generally and this court in particular. It was in the public interest, not in the interest of Mr. Foreman as a participant in the litigation.

The adjudication of contempt and the imposition of sentence occurred after Mr. Barclay performed. No effort was made to induce him to further action by the imposition of a penalty. In fact there does not appear to have been anything further that he could have done. No attempt was made to compensate Mr. Foreman for any loss or injury incident to Mr. Barclay's alleged contempt. The Court's action was purely punitive. In its nature the proceeding was criminal.

Neither Mr. Foreman nor his counsel sought any relief from the Court the granting of which either expressly or impliedly included such results — the matter was not an issue under the pleadings. As the action of the Court was in the public interest, neither Mr. Foreman nor his counsel was an adverse party nor the proper party upon whom to serve notice of appeal. In line with the principles of this decision we invite attention to the following authorities. Auto Highball Co. et al. v. Sibbett etal., 11 Ga. App. 618, 75 S.E. 914; Whitaker v. McBride, 5 Neb. Unof. 411, 98 N.W. 877, and Whipple v. Nelson,138 Neb. 514, 293 N.W. 382.

It should be understood that this decision is limited to the facts of this case; and it does not follow that had there been an element of coercion in the lower court's order of contempt, this decision would have been the same.

We are of the opinion that the motion to dismiss the appeal as to Mr. Barclay should be granted. It is so ordered.

McDONOUGH and WOLFE, JJ., concur.

LARSON, C.J., dissents.