Opinion
No. 40207.
September 13, 1948. Rehearing Denied, October 11, 1948.
1. CONTEMPT: Injunctions: Attorney and Client: Injunction Against Additional Suits Violated: Attorney Guilty of Civil Contempt: No Criminal Contempt. After a permanent injunction was issued prohibiting the prosecution of any further actions relating to a certain estate, a suit was filed in the federal courts. This was a violation of the injunction and constituted a civil contempt on the part of the attorney who filed the suit. But there was no criminal contempt.
2. CONTEMPT: Injunctions: Contempt Proceeding Dismissed. Since the suit in the federal court has been dismissed, the injunction is no longer being violated and the contempt proceeding should be dismissed.
A.W. Landis and Elliott H. Jones for relators.
(1) It is the almost universal rule that, where contempt is direct, in the immediate presence of the court, summary punishment may be inflicted without affidavit, pleading, or formal charges. 17 C.J.S., p. 87, par. 71. (2) A proceeding for contempt is sui generis, being neither a civil action, nor a criminal action, within the ordinary meaning of those terms. Further, it is said that there is no fixed formula for contempt proceedings, and that technical accuracy is not required. It has been said that a court may adopt its own procedure provided that the contemnor is afforded due process of law. 17 C.J.S., p. 71, par. 62. (3) In general, unless the time for instituting contempt proceedings is governed by statute, and such statute is seasonably pleaded, mere delay in instituting the proceedings is not a defense, unless the delay is prejudicial to defendant, or unreasonable in its duration. While it has been said that a court should act promptly in punishing direct contempts, delay is also permissible in such case, if it is reasonable, in the light of the facts and circumstances of the particular case. 17 C.J.S., p. 84, par. 68. (4) Contempt signifies not only a willful disregard or disobedience of the court's orders, but such conduct as tends to bring the authority of the court and the administration of law into disrepute, or in some manner to impede the due administration of justice. 17 C.J.S., p. 4, par. 2. (5) Misconduct by an attorney which reflects improperly on the dignity or authority of the court, or which obstructs or tends to obstruct, prevent, or embarrass the due administration of justice, constitutes contempt. 17 C.J.S., p. 35, Sec. 25(b). (6) The statute which authorizes the granting and enforcement of injunctions is merely declaratory of common law equity jurisdiction. Boeckler v. Ry. Co., 10 Mo. App. 448. (7) The injunction proceeding was heard de novo in this court, and this court had power to render any judgment in that proceeding, and to enforce any determination made by it. General Code of Civil Procedure, Secs. 140 (c), 140(e). (8) The power to stay a pending proceeding is restricted, by statute, to the court wherein the suit is pending. Not so with respect to an injunction against the institution of future suits. The main purpose there is to prevent the bringing of a suit in another court. 1 C.J., p. 1161, par. 416; 43 C.J.S., p. 491, Sec. 41. (9) The injunction is directed to and operates only upon the parties litigant, who were subject to the complete jurisdiction of the court that granted the injunction, and does not operate upon any other legal tribunal. 32 C.J., p. 84; Wabash W. Ry. v. Siefert, 41 Mo. App. 35; O'Haire v. Burns, 101 P. 755; 43 C.J.S., p. 1012; Ferguson v. Ferguson, 98 S.W.2d 847; Oates v. Morningside College, 252 N.W. 783, 217 Iowa 1059. (10) Respondent will not be heard to set up, as a defense, that he did not think that the injunction served to restrain him from bringing a suit in the federal court. 43 C.J.S., p. 1027. (11) Withdrawing as attorney for plaintiffs in said federal court suit does not permit Mr. Burroughs to escape punishment for contempt heretofore committed. And he may not escape future contempt by merely having further litigation prosecuted in the name of another attorney. No principle is better settled than that expressed in the maxim, "Facit per alium facit per se." Reynolds Admr. v. Black Mt. Corp., 42 S.W.2d 916; 13 C.J., p. 11; 17 C.J.S., pp. 16, 48. J.N. Burroughs for respondent.
(1) The contention of relators that the circuit court is bound by the decisions of the appellate courts, is against the law of this state. And therefore the holding of Division I, in the instant case, that the circuit judge was bound by the prior decisions in the trust case and in the will case was erroneous and therefore the trial judge erred in admitting the said decisions in evidence. Ralph v. Annulty, 28 S.W.2d 662; Prassee v. Prassee, 115 S.W.2d 887; Wonderly v. Layette County, 150 Mo. 654. (2) That a judgment of court rendered through fraudulent conduct of the judge who decides the case may be attacked and set aside in an equitable proceeding is well settled under the law of this state, in event no appeal lies from that decision. State ex rel. v. Thornhill, 160 S.W. 558; Burkarth v. Stephens, 94 S.W. 720, 117 Mo. App. 425; State ex rel. Baldwin v. Davidson, 40 S.W. 765, 139 Mo. 118; Wonderly v. Lafayette County, 150 Mo. 647. (3) It is the rule that language employed by a litigant or his attorney in a court proceeding is absolutely privileged, that no action will lie for use of language, either for damages or in contempt proceedings, if pertinent to the inquiry. Newfield v. Copperman, N.Y. How-Prac. 87-89; Blakeslee v. Carroll, 29 A. 413, 64 Conn. 223, 25 L.R.A. 106. (4) The truth is a complete defense herein and entitles appellants to the judgment of this banc court declaring the prior decisions null and void. Sec. 961, R.S. 1939. (5) This court, in attempting to pass upon the injunction case, merely intended to and did affirm the order of the trial court, without more, for this is all it said, "The judgment of the trial court is affirmed." There was no new judgment given or order of execution. Therefore, this court is without jurisdiction to issue the citation or to inflict punishment upon this respondent in this proceeding as for contempt, as it relates to the suit in the federal court.
Louise W. Langston, individually and as trustee and executrix, and the St. Louis Union Trust Company as trustee and executor of the estate of Barsha A. Langston, deceased, filed a petition in this court requesting that we issue a citation and order to J.N. Burroughs to show cause why he should not be adjudged guilty of contempt of this court. We issued the citation as prayed for by relators-respondents.
J.N. Burroughs, an attorney-at-law, brought a suit on behalf of the appellants to contest the validity of the will of Barsha A. Langston, deceased, which eventually resulted in a verdict of the jury and judgment of the court sustaining the will. In February, 1941, he filed a suit on behalf of the appellants to have the provisions of the trust instrument declared void. The trial judge, Honorable Tom R. Moore, sustained a demurrer to the petition. This court affirmed the action of the trial court. See 351 Mo. 609, 173 S.W.2d 826. In September 28, 1943, he filed a suit to attack the validity of the trust instrument and the trial judge. Honorable C.H. Jackson, dismissed the suit with prejudice. That judgment was affirmed by this court. 355 Mo. 115, 195 S.W.2d 466. In April, 1944, he filed a suit on behalf of appellants to have the trust provisions in the will declared [950] void. This action was dismissed by the last mentioned trial judge because it was barred by statute of limitation. This judgment was affirmed by this court. 355 Mo. 109, 195 S.W.2d 463.
The effect of the foregoing decisions is that the will and the provisions of the trust are valid and that appellants take nothing under either the residuary clause of the will or under the trust instrument.
On August 21, 1946, Burroughs brought this action on behalf of appellants, attacking the validity of the trust as provided in both the will and the trust instrument. They alleged that they were making the same allegations as to the alleged invalidity of the trust as were made in the suits previously filed. Relators-respondents filed a cross-petition recounting the various suits brought by appellants attacking the validity of the Langston will and trust, all of which were adverse to appellants' contentions, and alleging that this suit was brought for the purpose of harassing the relators-respondents and delaying the settlement of the Langston estate. They prayed that appellants and their attorneys be enjoined from prosecuting this suit or any other suit concerning the Langston estate and trust. The trial judge, Honorable Gordon Dorris, granted a permanent injunction as prayed for by relators-respondents. This action was affirmed by this court. 356 Mo. 1140, 205 S.W.2d 518.
On December 3, 1947, J.N. Burroughs as an attorney for the appellants instituted an action in the District Court of the United States for the Southern Division of the Western District of Missouri, at Springfield, seeking to have adjudged invalid the residuary clause of the Langston will. On December 22, 1947, relators-respondents filed a petition in this court requesting a citation and order to show cause why J.N. Burroughs should not be adjudged guilty of contempt of this court for filing and prosecuting the above mentioned case in the United States District Court. This court issued the order and citation as requested and on February 27, 1948, he filed his answer.
In relators-respondents' reply to J.N. Burroughs' answer filed March 13, 1948, they alleged among other things "that said Federal Court suit was dismissed by that court upon motion of" these relators-respondents and they filed as a part of their reply "a certified copy of the opinion of Albert L. Reeves, United States District Judge, dismissing said suit."
Among other defenses, J.N. Burroughs states that he thought the injunction order applied only to the trial court that issued the injunction; that he had been advised by competent counsel that he "would not violate said injunction order by filing suit in Federal Court"; and that he "acted in perfectly good faith in bringing said action in the Federal Court, and without thought or intention of flaunting the power and dignity of this Court."
Of course, a court can only speak through its records. The decree of the trial court which was affirmed by this court reads as follows:
"It is now hereby ordered by the court that the plaintiffs in this cause, and their agents, privies and attorneys, be and are hereby forever restrained and enjoined from further prosecuting the instant suit, above entitled, and from instituting or attempting to prosecute any other suit or action, concerning or with respect to the last will or the estate of Barsha A. Langston, deceased, or concerning or with respect to the trust instrument referred to in the petition and in the cross-petition herein."
The above quoted part of the decree enjoins the appellants, their agents, privies and attorneys from prosecuting the instant suit and from instituting or attempting to institute any other suit concerning the last will or the trust instrument of Barsha A. Langston, deceased, in any court, whether it be a federal court, a court of this state, or a court of any other state. There is no language in the injunction decree that could be construed as enjoining appellants from prosecuting a suit only in the circuit court of Howell County, Missouri. The filing of the suit in the District Court of the United States is a clear violation of the injunction which was affirmed by this court. The violation of this injunction made J.N. Burroughs guilty of civil contempt but not of criminal contempt.
Criminal contempt is where a person is prosecuted to preserve the power and [951] vindicate the dignity of the court and to punish him for disobedience of its orders. Criminal contempt is punitive in its nature, and the state, the courts, and the people are interested in the prosecution. Civil contempt is remedial and coercive in nature, and the parties chiefly interested in the conduct and prosecution are the individuals whose private rights and remedies and contempt proceedings are instituted to protect or enforce. Clay v. Waters, 101 C.C.A. 645, 178 F. 385.
In the case of Merchants' Stock Grain Co., et al. v. Board of Trade of City of Chicago, et al., 187 F. 398, 109 C.C.A. 230, l.c. 233, the Circuit Court of Appeals said the following in holding that the violation of an interlocutory injunction by the defendants was civil and not criminal contempt:
"The proceedings upon which the defendants below were adjudged to pay their fines were instituted and conducted, not by the government for an affront to the dignity of the court, but by the complainant below, the Board of Trade of Chicago, to protect its property from continuing trespasses, and to save itself from irreparable injury pendente lite. They were based on its petition, and its counsel presented the evidence in support of it. Neither the United States attorney, nor any other officers of the government, nor any representative of the people, took any part in the prosecution or had any especial interest therein. The purpose of the proceeding was to protect the Board from irreparable injury, and its property, its continuous quotations of the market reports, from continuing trespasses and appropriation by the defendants, by enforcing the injunction which the court had granted to the complainant for that very purpose. The chief object of the fines was to coerce the defendants to obey the injunction during the pendency of the suit and to reimburse the complainant for the expenses of its prosecution of the proceedings for contempt."
The case of The State ex rel. Chicago, Burlington Quincy R.R. Co. et al. v. Bland et al., 189 Mo. 197, 88 S.W. 28, involved the question of whether two defendants who violated an injunction were guilty of criminal or civil contempt. We held they were guilty of civil contempt and in ruling the case we said:
"A criminal contempt involves no element of personal injury. It is directed against the power and dignity of the court, and private parties have little if any interest in the proceedings for its punishment. But if the contempt consists in the refusal of a party or a person to do an act which the court has ordered him to do for the benefit or the advantage of a party to a suit or action pending before it, and he is committed until he complies with the order, the commitment is in the nature of an execution to enforce the judgment of the court, and the party in whose favor that judgment was rendered is the real party in interest in the proceedings. [See, also, Rapalje on Contempts, sec. 21]." Loc. cit. 214.
"A criminal contempt proceeding is generally held to be independent of the cause out of which the alleged contempt arose, although it is dependent for its foundation on the proceedings in such cause, and it is a proceeding at law. . . . It has been held that a proceeding for contempt to enforce a remedy in a civil action is a proceeding in that action, especially a contempt proceeding in a court of equity in aid of the court's original jurisdiction and in the enforcement of its decree; but it has been held that while the proceeding is auxiliary to the main case in that it proceeds out of the original case, it is essentially a new and independent proceeding in that it involves new issues and must be initiated by the issuance and service of new process." 17 C.J.S., Sec. 62, p. 78.
This contempt action was instituted by the relators-respondents to preserve a private right they had obtained in the cross-petition in the original action, namely, to prevent appellants and their attorneys from harassing relators-respondents with another action in regard to the Langston estate and trust. It was not brought as an independent action but is a proceeding for the enforcement of the court decree and is auxiliary to the main case. There can be no doubt that this is civil contempt.
"A proceeding for civil contempt has as its object remedial punishment `by way of a coercive imprisonment, or a compensatory [952] fine, payable to the complainant.'" City of Campbell, Mo. et al. v. Arkansas-Missouri Power Co., 65 F.2d 425, l.c. 427.
"Imprisonment in such cases is not inflicted as a punishment, but is intended to be remedial by coercing the defendant to do what he had refused to do. The decree in such cases is that the defendant stand committed, unless and until he performs the affirmative act required by the court's order. . . . If imprisoned, as aptly said In re Nevitt, 117 F. 451, `he carries the keys of his prison in his own pocket.' He can end the sentence and discharge himself at any moment by doing what he had previously refused to do." Gompers v. Bucks Stove Range Co., 221 U.S. 418, 442, 443, 31 Sup. Ct. 492, 498, 58 L.Ed. 797, 34 L.R.A. [N.S.] 874. We cited the above quotation with approval in the case of McNealey v. Rouse, Sheriff, 264 S.W. 383.
At the time we issued our citation, the case was pending in the District Court of the United States. As previously stated, relators-respondents' reply shows that that case was dismissed by the judge of that court, Honorable Albert L. Reeves, on their motion. That case is no longer pending in the United States District Court. Coercive methods to compel J.N. Burroughs to comply with judgments of this court are therefore unnecessary. He is not now violating the injunction.
It follows that this contempt proceeding should be dismissed. It is so ordered. All concur.