It is not within the power of the Supreme Court of the District
of Columbia to order the answer of the defendant in a chancery suit
pending in that court to be stricken from the files, and a decree
to be entered that the bill be taken
pro confesso against
him, simply because he was held to be guilty of contempt in
neglecting to pay into court money held by him which was the
subject of controversy in the suit, and declined to appear when
summoned to do so.
A court possessing plenary power to punish for contempt,
unlimited by statute, has not the right to summon a defendant to
answer, and then after obtaining jurisdiction by the summons,
refuse to allow the party summoned to answer or strike his answer
from the files, suppress the testimony in his favor, and condemn
him without consideration thereof and without a hearing, on the
theory that he has been guilty of a contempt of court.
The judicial history of the law concerning contempt of court in
England and in this country reviewed and considered.
The case is stated in the opinion.
MR. JUSTICE WHITE delivered the opinion of the Court.
The facts out of which this controversy grows are fully stated
in
Hovey v. McDonald, 109 U. S. 150, but
we briefly reiterate those which are material to an understanding
of the issues now presented.
A. R. McDonald, a British subject, obtained an award from the
mixed commission appointed under the treaty of 1871 for the
settlement of the "Alabama claims." 17 Stat. 863. Before the
payment of the award, two suits in equity were commenced in the
Supreme Court of the District of Columbia
Page 167 U. S. 410
against McDonald and one William White, to whom it was asserted
McDonald had made a fraudulent assignment of his claim. One of the
suits was by Thomas R. Phelps, who alleged that he was the owner of
the claim as the assignee in bankruptcy of McDonald. The other was
brought by Hovey and Dole, who claimed to be entitled to a
one-fourth interest in the award in consequence of an alleged
contract which they asserted they had made with McDonald, entitling
them to an interest, to that extent, for professional services
rendered or to be rendered in the prosecution of the claim.
Injunctions were issued against the collection by McDonald and
White of the fund. In the Phelps suit, a consent decree was
entered, which was also assented to by the parties in the Hovey and
Dole cause, releasing one-half of the award and authorizing G. W.
Riggs, who was appointed receiver, to collect the other half, and
retain it to abide the result of both suits. The receiver,
moreover, was directed to invest the money by him collected either
in registered bonds of the United States or of the District of
Columbia guaranteed by the United States.
The bills and amended bills were demurred to in each suit, and,
the demurrer in both cases being sustained, the bills were
dismissed. The decree of dismissal in the Hovey and Dole case,
entered on the 24th of June, 1875, simply stated that the demurrer
was sustained and the bill dismissed, with costs. On the same day,
an appeal, without supersedeas, to the general term was noted on
the minutes of the court. This decree was, a few days thereafter,
on the 28th of June, amended by ordering the receiver to pay over
the funds in his hands, and providing for his discharge. This
decree was presented to the receiver and, in accordance with
personal and verbal instructions given him by a judge of the court
by which the decree of dismissal was rendered, the receiver
delivered the bonds in his custody to McDonald. On the same day,
the firm of Riggs & Company, supposing that they had a perfect
right so to do, purchased the bonds from McDonald at their full
market value and caused them to be transferred into their name. The
decree of dismissal in the
Phelps case, which was also
appealed from, was affirmed by the general term of the
Page 167 U. S. 411
Supreme Court of the District, but that in the case of Hovey and
Dole was reversed. The latter case was put at issue by filing an
answer averring fraud and wrongdoing on the part of Hovey and Dole,
the answer alleging facts which, if found to be true, would have
defeated a recovery by the complainants. After replication,
testimony was taken at various times during the years 1875 and
1876.
In June, 1877, the complainants obtained an order from the
Supreme Court of the District of Columbia at general term,
requiring the defendants McDonald and White to "pay over to the
registry of the court" the sum of $49,297.50, which had been paid
them by the receiver. This order was disobeyed, and thereupon the
complainants, in September, 1877, moved the defendants McDonald and
White to show cause "why they and each of them should not be
punished for disobedience of the order as for a contempt." On
December 8, 1877, the Supreme Court of the District of Columbia
made a decree at general term that
"the rule upon the defendants to show cause why they should not
be decreed to be in and punished as for a contempt of court, etc.,
be made absolute, and that the said McDonald and White be taken and
deemed to be in contempt of the aforesaid order,"
etc. Such decree further provided that,
"unless McDonald and White, within six days from the entry of
this order and the service of a copy thereof upon their solicitors,
shall in all respects comply with the said order of June 19, 1877,
and pay unto the said registry of this Court the sum of $49,297.50,
the answer filed by them in the cause be stricken out, and that
this cause proceed as if no answer therein had been interposed, and
that, until the said defendants shall comply with the said order of
June 19, 1877, all proceedings on the part of said defendants in
this cause be, and the same are hereby, perpetually stayed."
On December 29, 1877, the Supreme Court of the District of
Columbia at general term, on motion of the complainants and proof
of noncompliance on the part of the defendants McDonald and White
with the requirements of the decree of December 8, 1877,
"ordered, adjudged, and decreed that the answer filed in this
cause by the defendants McDonald and
Page 167 U. S. 412
White be stricken out and removed from the files of the court,
and that this cause do proceed as if no answer herein had been
interposed."
On February 12, 1878, the Supreme Court of the District of
Columbia at general term made decree as follows:
"The answer of defendants having been removed from the files for
their contempt in refusing to obey the order of court and deposit
in the registry the sum of $49,297.50, it is now ordered, adjudged,
and decreed that the bill be taken
pro confesso against
them."
On April 17, 1878, that order was made absolute by another order
or decree which, after reciting material allegations in the
complainants' bill as "standing without denial on the part of the
defendants," ordered and adjudged
"that the complainants have a lien upon the claim of Augustine
R. McDonald against the United States . . . of $197, 190, and upon
any draft, money, evidence of indebtedness, or proceeds
thereof."
Thereafter proceedings were taken in the court by which the
judgment had been awarded to compel Riggs, as receiver, to account
for the money which had come into his hands, and which he had paid
over to McDonald under the circumstances already stated. This suit
culminated in a judgment in favor of Riggs, affirmed by this Court
in
Hovey v. McDonald, supra.
The suit now before us was subsequently commenced in the State
of New York against the surviving partners of Riggs & Company,
but service was had only on one of the partners, John Elliott, and,
he having died, his executors were substituted as parties
defendant. The object of the suit was to compel the defendants to
account for the bonds or their value, upon the theory that Riggs
& Company had acquired them with actual notice of the pending
litigation concerning the bonds, and were bound by the result of
the judgment rendered as above stated in the suit of
Hovey v.
McDonald. The Court of Appeals of New York held that the
judgment was not binding upon Riggs & Company or the surviving
members thereof, because, as it was rendered in a contempt
proceeding after striking out the answer and refusing to consider
the testimony filed in the cause, the judgment was
Page 167 U. S. 413
beyond the jurisdiction of the court, as the power of courts of
the District of Columbia to punish for contempt was restricted by
the provisions of section 725 of the Revised Statutes.
Hovey v.
Elliott, 145 N.Y. 126. The New York court, moreover, held that
even assuming that the Supreme Court of the District had
jurisdiction, and that the doctrine of the liability of purchasers
pendente lite applied to a purchase made under the
circumstances shown, the firm of Riggs & Company were not such
purchasers with reference to the judgment in question, as the
lis in which the judgment was rendered was not the one
pending at the time of the sale to the firm. From this judgment,
error was prosecuted to this Court upon the theory that the
decision of the Court of Appeals of the State of New York denied
proper faith and credit to the judgment rendered by the Supreme
Court of the District of Columbia.
Whether, as held by the court below, the courts of the District
of Columbia are confined in all characters of contempt only to an
infliction of the penalties authorized in section 725 of the
Revised Statutes, and therefore have not power in any other form or
manner to punish for a contempt, is a question which we do not deem
it necessary to decide, and as to which therefore we express no
opinion whatever. In the view we take of the case, even conceding
that the statute does not limit their authority, and hence that the
courts of the District of Columbia, notwithstanding the statute,
are vested with those general powers to punish for contempt which
have been usually exercised by courts of equity without express
statutory grant, a more fundamental question yet remains to be
determined -- that is, whether a court possessing plenary power to
punish for contempt, unlimited by statute, has the right to summon
a defendant to answer, and then, after obtaining jurisdiction by
the summons, refuse to allow the party summoned to answer, or
strike his answer from the files, suppress the testimony in his
favor, and condemn him without consideration thereof, and without a
hearing, on the theory that he has been guilty of a contempt of
court. The mere statement of this proposition would seem, in reason
and conscience, to render imperative a negative answer. The
fundamental
Page 167 U. S. 414
conception of a court of justice is condemnation only after
hearing. To say that courts have inherent power to deny all right
to defend an action and to render decrees without any hearing
whatever is, in the very nature of things, to convert the court
exercising such an authority into an instrument of wrong and
oppression, and hence to strip it of that attribute of justice upon
which the exercise of judicial power necessarily depends.
In
McVeigh v. United
States, 11 Wall. 259, the court, through Mr.
Justice Swayne, said (p.
78 U. S.
267):
"In our judgment, the district court committed a serious error
in ordering the claim and answer of the respondent to be stricken
from the files. As we are unanimous in this conclusion, our opinion
will be confined to that subject. The order, in effect, denied the
respondent a hearing. It is alleged that he was in the position of
an alien enemy, and hence could have no
locus standi in
that forum. The liability and the right are inseparable. A
different result would be a blot upon our jurisprudence and
civilization. We cannot hesitate or doubt on the subject. It would
be contrary to the first principles of the social compact and of
the right administration of justice."
And, quoting with approval this language, in
Windsor v.
McVeigh, 93 U. S. 277,
the Court, speaking through Mr. Justice Field, again said (pp.
93 U. S.
277-278):
"The principle, stated in this terse language, lies at the
foundation of all well ordered systems of jurisprudence. Wherever
one is assailed in his person or his property, there he may defend,
for the liability and the right are inseparable. This is a
principle of natural justice, recognized as such by the common
intelligence and conscience of all nations. A sentence of a court
pronounced against a party without hearing him, or giving him an
opportunity to be heard, is not a judicial determination of his
rights, and is not entitled to respect in any other tribunal."
"That there must be notice to a party of some kind, actual or
constructive, to a valid judgment affecting his rights, is
admitted. Until notice is given, the court has no jurisdiction
Page 167 U. S. 415
in any case to proceed to judgment, whatever its authority may
be, by the law of its organization, over the subject matter. But
notice is only for the purpose of affording the party an
opportunity of being heard upon the claim or the charges made; it
is a summons to him to appear and speak, if he has anything to say,
why the judgment sought should not be rendered. A denial to a party
of the benefit of a notice would be, in effect, to deny that he is
entitled to notice at all, and the sham and deceptive proceeding
had better be omitted altogether. It would be like saying to a
party, 'Appear and you shall be heard,' and, when he has appeared,
saying, 'Your appearance shall not be recognized, and you shall not
be heard.' In the present case, the district court not only, in
effect, said this, but immediately added a decree of condemnation,
reciting that the default of all persons had been duly entered. It
is difficult to speak of a decree thus rendered with moderation. It
was, in fact a mere arbitrary edict, clothed in the form of a
judicial sentence."
This language but expresses the most elementary conception of
the judicial function. At common law, no man was condemned without
being afforded opportunity to be heard. Thus. Coke (2 Inst. p. 46),
in commenting on the twenty-ninth chapter of Magna Charta,
says:
"No man shall be disseised, etc., unless it be by the lawful
judgment; that is, verdict of his equals (that is, of men of his
own condition), or by the law of the land (that is, to speak it
once for all, by the due course and process of law)."
Blackstone, in Book 4 of the Commentaries, at page 282, after
referring to the subject of summary convictions, says:
"The process of these summary convictions, it must be owned, is
extremely speedy, though the courts of common law have thrown in
one check upon them by making it necessary to summon the party
accused before he is condemned. This is now held to be an
indispensable requisite, though the justices long struggled the
point, forgetting that rule of natural reason expressed by
Seneca:"
"
Qui statuit aliquid, parte inaudita altera,"
"
Aequum licet statuerit, haud aequus fuit:"
Page 167 U. S. 416
"a rule to which all municipal laws that are founded on the
principles of justice have strictly conformed, the Roman law
requiring a citation at the least, and our common law never
suffering any fact (either civil or criminal) to be tried till it
has previously compelled an appearance by the party concerned."
In
Capel v. Childs, 2 Cromp. & Jer. 558 (1832), the
validity of a proceeding by a bishop under an act of Parliament
against a church vicar was in question. A requisition upon the
vicar to do a certain act was held to be in the nature of a
judgment, and void, as the party had no opportunity of being heard.
Lord Lyndhurst, C.B. at 574, said:
"A party has a right to be heard for the purpose of explaining
his conduct; he has a right to call witnesses for the purpose of
removing the impression made on the mind of the bishop; he has a
right to be heard in his own defense. On consideration, then, it
appears to me that if the requisition of the bishop is to be
considered a judgment, it is against every principle of justice
that that judgment should be pronounced not only without giving the
party an opportunity of adducing evidence, but without giving him
notice of the intention of the judge to proceed to pronounce the
judgment."
In
Bonaker v. Evans, 16 Q.B. 162, the main question for
consideration was whether a sequestration ordered by a bishop was a
proceeding simply in the nature of a distress to compel residence,
or altogether or even in part
in poenam for previous
nonresidence. The court said (p. 171):
"If it be the latter, then the bishop ought to have given the
incumbent an opportunity of being heard before it was issued; for
no proposition can be more clearly established than that a man
cannot incur the loss of liberty or property for an offense by a
judicial proceeding until he has had a fair opportunity of
answering the charge against him, unless, indeed, the legislature
has expressly or impliedly given an authority to act without that
necessary preliminary. This is laid down in
Bagg's Case,
11 Rep. 93
b, 99
a;
Rex v. Chancellor, etc., of
University of Cambridge (Dr. Bentley's Case), 1 Strange 557;
Rex v. Benn, 6 T.R.198;
Harper v. Carr,
Page 167 U. S. 417
7 T.R. 270, and
Rex v. Gaskin, 8 T.R. 209, and many
other cases, concluding with that of
Capel v. Childs, 2
Cromp. & Jer. 558, in which Bayley, B., says he knows of no
case in which you are to have a judicial proceeding by which a man
is to be deprived of any part of his property without his having an
opportunity of being heard. That case was a very strong one, and
shows how firmly the court adheres to that great principle of
justice that in every judicial proceeding
'Qui statuit aliquid
parte inaudita altera, acquum licet statuerit, haud acquus
fuit.'"
Story, in his treatise on the Constitution (vol. 2, ยง 1789),
speaking of the clause in the Fifth Amendment where it is declared
that no person "shall be deprived of life, liberty, or property
without due process of law," says:
"The other part of the clause is but an enlargement of the
language of Magna Charta,
'nec super eum ibimus, nec super eum
mittimus, nisi per legale judicium parium suorum, vel per legem
terrae' (Neither will we pass upon him, or condemn him, but by
the lawful judgment of his peers, or by the law of the land). Lord
Coke says that these latter words, '
per legem terrae' (by
the law of the land), mean by due process of law -- that is,
without due presentment or indictment, and being brought into
answer thereto by due process of the common law. So that this
clause in effect affirms the right of trial according to the
process and proceedings of the common law."
Can it be doubted that due process of law signifies a right to
be heard in one's defense? If the legislative department of the
government were to enact a statute conferring the right to condemn
the citizen without any opportunity whatever of being heard, would
it be pretended that such an enactment would not be violative of
the Constitution? If this be true, as it undoubtedly is, how can it
be said that the judicial department -- the source and fountain of
justice itself -- has yet the authority to render lawful that
which, if done under express legislative sanction, would be
violative of the Constitution. If such power obtains, then the
judicial department of the government, sitting to uphold and
enforce the Constitution, is the only one possessing a power
Page 167 U. S. 418
to disregard it. If such authority exists, then, in consequence
of their establishment, to compel obedience to law, and to enforce
justice, courts possess the right to inflict the very wrongs which
they were created to prevent.
In
Galpin v.
Page, 18 Wall. 350, the Court said (p.
85 U. S.
368):
"It is a rule as old as the law, and never more to be respected
than now, that no one shall be personally bound until he has had
his day in court, by which is meant until he has been duly cited to
appear,
and has been afforded an opportunity to be heard.
Judgment without such citation and opportunity wants all the
attributes of a judicial determination. It is judicial usurpation
and oppression, and can never be upheld where justice is justly
administered."
Again, in
Ex Parte Wall, 107
U. S. 289, the Court quoted with approval the
observations as to "due process of law" made by Judge Cooley in his
Constitutional Limitations at page 352, where he says:
"Perhaps no definition is more often quoted than that given by
Mr. Webster in the
Dartmouth College Case:"
"By the law of the land is most clearly intended the general
law; a law which hears before it condemns, which proceeds upon
inquiry, and renders judgments only after trial. The meaning is
that every citizen shall hold his life, liberty, property, and
immunities under the protection of the general rules which govern
society."
And that the judicial department of the government is, in the
nature of things, necessarily governed in the exercise of its
functions by the rule of due process of law is well illustrated by
another observation of Judge Cooley, immediately following the
language just quoted, saying:
"The definition here given is apt and suitable as applied to
judicial proceedings, which cannot be valid unless they 'proceed
upon inquiry,' and 'render judgment only after trial.'"
The necessary effect of the judgment of the Supreme Court of the
District of Columbia was to decree that a portion of the award made
in favor of the defendant -- in other words, his property --
belonged to the complainants in the cause. The decree therefore
awarded the property of the defendant to
Page 167 U. S. 419
the complainants upon the hypothesis of fact that, by contract,
the defendant had transferred the right in or to this property to
the complainant. If the court had power to do this by denying the
right to be heard to the defendant, what plainer illustration could
there be of taking property of one and giving it to another without
hearing or without process of law? If the power to violate the
fundamental constitutional safeguards securing property exists, and
if they may be with impunity set aside by courts on the theory that
they do not apply to proceedings in contempt, why will they not
also apply to proceedings against the liberty of the subject? Why
should not a court in a criminal proceeding deny to the accused all
right to be heard on the theory that he is in contempt, and
sentence him to the full penalty of the law? No distinction between
the two cases can be pointed out. The one would be as flagrant a
violation of the rights of the citizen as the other; the one as
pointedly as the other would convert the judicial department of the
government into an engine of oppression, and would make it destroy
great constitutional safeguards.
But the argument is that, however plain may be the want of power
in all other branches of the government to condemn a citizen
without a hearing, both upon the elementary principles of justice
and under the express language of the Constitution, these
principles do not limit the power of courts to punish for contempt
or as for contempt, because it is asserted that from the earliest
times, the Chancery Court in England has possessed and exercised
the power to refuse the right to be heard to one in contempt, and
that a power so well established in England, before the adoption of
the Constitution, and which has been so often exercised since, is
not controlled by the principles of reason and justice just stated.
But this contention is without solid foundation to rest upon, and
is based upon a too strict and literal rendering of general
language to be found in isolated passages contained in the works of
writers on ancient law and practice, and on loose statements as to
the practice of the Court of Chancery to be found in a few
decisions of English courts. Certain it is that
Page 167 U. S. 420
in all the reported decisions of the Chancery Courts in England,
no single case can be found where a Court of Chancery ever ordered
an answer to be stricken from the files, and denied to a party
defendant all right of hearing because of a supposed contempt. And
in the American adjudications, while there are two cases -- one in
New York and the other in Arkansas -- asserting the existence of
such power, an analysis of these cases and the authorities upon
which they rely will conclusively show the erroneous character of
the conclusions reached.
The foundation for the assertion that the power existed in and
was exercised by the English Court of Chancery to strike from the
files the answer of a defendant in contempt for disobedience to an
order made in the cause, and to decree
pro confesso
against him, primarily rests upon what is supposed to be the true
construction of one of the ordinances of Lord Bacon (promulgated in
1618), which reads as follows:
"78. They that are in rebellion, especially as far as
proclamation of rebellion, are not to be here, [heard?] neither in
that suit nor any other, except the court of special grace suspend
the contempt."
What construction was given to this ordinance, or the extent to
which it was enforced by the Court of Chancery in the years
immediately succeeding its adoption cannot be positively affirmed,
as we have not found nor have we been referred to any decisions
made in the seventeenth or eighteenth centuries purporting to be
based upon that ordinance.
On the mere text of the ordinance, it is manifest that it does
not necessarily embrace the power to enter a decree
pro
confesso after answer filed upon the theory that the defendant
was guilty of contempt. On the contrary, the proclamation of
rebellion referred to in the ordinance was one of the then
recognized processes for the purpose of compelling an answer in the
suit. Indeed, the powers of the Chancery Courts to punish for
contempt were normally brought into play beginning with an
attachment of the person and culminating in the sequestration of
the property of the one in contempt in order to compel an
appearance and answer. Gilbert, For.Rom. p. 33; 3 Bl.Com. 443.
Nowhere in these works is
Page 167 U. S. 421
there an intimation that, as a penalty for contempt, a
refractory defendant, not in default for answer, might be punished
by being disallowed the right to defend against the bill filed in
the cause. So far from such being the case, as already stated, a
party who failed to appear or answer was treated as in contempt,
and the various processes for contempt were resorted to in order to
compel his appearance and answer, this being done in order that the
conscience of the court might be satisfied when it entered a decree
in the cause.
Thus, in the Forum Romanum, Lord Chief Baron Gilbert says (p.
36):
"The canonists do take the proclamation or
primum
decretum to be
quasi litis contestatio, and therefore
the plaintiff may proceed to his proofs, and then the
secundum
decretum for the thing in demand may be pronounced. We have no
quasi litis contestatio with us, because, unless the
defendant comes and contests, there is no jurisdiction to a court
of conscience, for, unless the party confesses the fraud or
corruption of which the court inquires, or it be proved upon him,
there is no sufficient ground for a decree, which cannot be without
contestatio litis."
"But there are two cases in which an implied confession is a
sufficient ground for a decree."
"The first is when a man appears by his clerk in court, and
afterwards lies in prison, and is brought up three times to court
by ha. cor., and has the bill read to him, and he refuses to
answer. Such public refusal in court does amount to the confession
of the whole bill."
"The second case is when a person appears and departs without
answering, and the whole process of the court has been awarded
against him after his appearance and departure, to the
sequestration. There also, the bill is taken
pro confesso,
because it is presumed to be true when he has appeared, and departs
in spite of the court, and withstands all its process without
answering, and this seems to have been the ancient practice of the
civil law, for Justinian, by the Novel, brought in the
secundum
decretum in the absence of the party, and the canonists, by a
fiction of law, made the proclamation
quasi
Page 167 U. S. 422
litis contestatio, but by the ancient civil law no
decree could be had against an absent person against whom process
had been issued, but could never be brought in to appear. And it is
so with us that if the whole process of the court be spent, and the
defendant never appears, you can never have a decree, for you can
never make any proofs against an absent person who is never brought
into contest, and there is no foundation for a decree without
confession or proofs. However, the plaintiff has the benefit of the
sequestration, which answers to the
primum decretum."
While by Act 5 Geo. II. c. 25, for want of appearance, when a
defendant avoided service of process, the court was authorized,
after the giving of prescribed public notice, to order the
plaintiff's bill to be taken
pro confesso, Davis v. Davis,
2 Atk. 21, 23, the text quoted is convincing evidence that a decree
was only permissible in the "court of conscience" under a state of
facts which justified the implication of an admission by the
defendant that the allegations of the bill were true, and that the
practice was not pursued as a punishment for any other contempt
than of contumaciously refusing to inform the Chancellor of the
defense, if any, possessed by the defendant in a cause.
In stating the practice with reference to injunction suits,
several of the ancient writers use general language as to the
practice pursued when a party disobeyed an injunction, which
perhaps affords room for speculation as to the extent to which the
court might have proceeded in refusing to hear a party who had
violated its order and had not purged his contempt. Thus, in the
Practical Register in Chancery, p. 217, it is said:
"Where an injunction is disobeyed, on oath thereof, process of
contempt is to issue against the contemnor, as in other cases, till
he yield obedience; nor is he to be heard in the principal case
till he yield obedience."
Comyn, in his Digest (Chancery, D. 8), thus puts it:
"And if, after service [of an injunction], it shall be
disobeyed, all process for contempt issues, will the offender be
taken and committed upon an affidavit of his disobedience."
Vide Pract.Reg.Ch. 217.
Page 167 U. S. 423
"And when he is taken he shall be committed till he obey, or
give security for his obedience, and shall not be heard in the
principal case until he obey."
Id.
Whether in early chancery times the practice was to stay all
proceedings on the part of a disobedient party defendant until his
contempt of an injunction was purged can only be surmised. In 1788,
it seems that a defendant, though in contempt for violating an
injunction, might file his answer in the cause.
Robinson v.
Lord Byron, 2 Dick. 703. It is not at all unlikely that the
restriction was upon the party coming before the court by way of
motion seeking affirmative action by the court in his favor. It is
certain that neither in the Register nor in Comyns is there a
suggestion that a party, while in contempt for disobedience of an
injunction, might,
for such cause, be defaulted upon the
merits.
The Forum Romanum makes no reference to the rule or method of
practice stated in the Register otherwise than as may be inferred
from the statements in paragraph 11, p. 194, where the author
mentions that, by the proceeding then in vogue for punishing for
breach of an injunction, "a man is at once deprived of his liberty,
and cannot move or petition but
in vinculis, unless the
court otherwise give leave on a petition to hear him."
The review and analysis of the English cases which we now
propose to make will demonstrate that the passages to which we have
just referred could not have imported the power of a court to
strike an answer from the files and take a bill for confessed
because of a contempt, since that analysis will conclusively
establish that there is no basis for the assertion that the courts
of chancery in England claimed or exercised the power, after answer
filed, to decree
pro confesso on the merits against a
defendant, merely because he persisted in disobedience to an order
of the court, though the cases do show that the Chancery Courts
commonly refused to hear a defendant in contempt when asking at
their hands a favor. The difference between the want of power, on
the one hand, to refuse to one in contempt the right to defend in
the principal case on the merits and the existence of the
authority, on the other, to refuse to
Page 167 U. S. 424
accord a favor to one in contempt, is clearly illustrated by the
whole line of adjudicated cases.
The cases of
Phillips v. Bucks, (Duke) 1 Vern. 228
(1683),
Roper v. Roper, 2 Vern. 91 (1688), and
Maynard
v. Pomfret, 3 Atk. 468 (1746), do not discuss the ordinance of
Lord Bacon, but touch upon the question of the right of a defendant
in contempt to be heard. In the first case cited, the reporter, in
a marginal note, alluding to a defendant who was in contempt
for failure to appear or answer, says:
"One of the defendants is in contempt, and stands out to a
sequestration, and the cause is heard against the other defendants;
yet he may come in and answer, and the cause may be heard again as
to him."
In
Roper v. Roper, upon a decree for payment of money,
after a writ of execution and an attachment returned, the court
declined to give leave to defendant to be examined unless he gave
security to abide the decree. This was clearly an application
addressed to the discretion of the court, and therefore a matter of
favor.
In
Maynard v. Pomfret, a bill was brought against the
defendant for a discovery. As the material part of the case
depended upon the discovery, the defendant would not answer, but
stood out the whole process of contempt to a sequestration, and the
bill was taken
pro confesso, and there was a decree
against the defendant
ad computandum. It was moved on
behalf of the defendant that the sequestration may be discharged on
paying the costs of the contempt. The Chancellor regarded action
upon the application as discretionary, and held that the
sequestration should be kept on foot to stand as security for the
appearance of the defendant before the master.
That in the time of Lord Clarendon, the practice of the Court of
Chancery was only to deny to a party in contempt the privilege of
having favorable action taken by the court upon applications
addressed to its discretion finds support not only in the case of
Phillips v. Bucks, supra, but also in a decision of Sir H.
Grimston, Master of the Rolls, who, in refusing an application for
relief against a sequestration of lands of the defendant following
a decree, assigned, among other reasons,
Page 167 U. S. 425
the following:
"2dly the defendant not having performed the decree by the
payment of the money, he shall not receive any favour from the
court whilst he stands in contempt."
Bacon's Abridgement, Sequestration, C, the marginal reference
being to a case entitled
Sands v. Darrell.
Vowles v. Young, 9 Ves. 172 (1803), was likewise an
application to the favor of the court. A decree absolute had been
entered after a decree
nisi against a defendant who was in
default, and consequently in contempt. He applied for a rehearing,
and in the course of an opinion granting the application upon
terms, Lord Eldon said, not citing authority: "As to contempt, the
general rule is that the parties must clear their contempt before
they can be heard." The language of the Chancellor necessarily
related to the question before it -- that is, an application for a
rehearing, addressed to the exercise of discretion. Stating the
general, and not the invariable, rule implied the possible
existence of exceptions to such rule.
Anonymous, 15 Ves. 174 (1808), was a case where the
defendant, being in default for not answering, filed an answer
without making any stipulation for the payment of costs, and also
moved to dismiss the bill for want of prosecution. Upon the
authority of the passage in
Vowles v. Young just quoted,
counsel for the complainant objected that the defendant could not
make the motion, or take any step to the prejudice of the
plaintiff, until the contempt was discharged. The Lord Chancellor
said: "The general rule that has been referred to is perfectly true
-- that a party who has not cleared his contempt cannot be heard."
The plaintiff, however, was held to have waived the right to treat
the defendant as being in contempt, because he had excepted and
replied to the answer without insisting upon the costs and
enforcing his process of contempt. Presumably the general rule here
referred to was that to which we have already adverted,
viz., the power of a Chancellor to refuse to grant a favor
to one in contempt. The facts brought the case under this rule,
since the defendant, who was in contempt for not paying the costs
on filing his answer, sought to invoke the aid of the court to
dismiss the plaintiff's bill for failure to prosecute the suit.
Page 167 U. S. 426
Heyn v. Heyn, Jacob 49, decided in 1821, was a case
where, after a decree
pro confesso upon default for
answer, the defendant moved that a sequestration which had been
issued against his property for not putting in his answer might be
discharged upon payment of costs, and that he might be allowed to
attend the master upon the taking of the accounts directed by the
decree. The Lord Chancellor observed that an answer which had been
put in after an order for taking the bill
pro confesso
ought not to be noticed, and that it could not vary the decree
which had been rendered. He, however, granted the application upon
conditions, being of opinion that the defendant was not at liberty
to go before the master without an order. The mere statement of
this case demonstrates that it involved purely a question of
whether the Chancellor would accord to the defendant a favor or
privilege.
In
Clark v. Dew, 1 Russ. & M. 103 (1829), the
plaintiff applied for the appointment of a receiver, and it was
objected by the defendants that, as the plaintiff was in contempt
of court for disobeying certain orders in another cause pending
between the same parties, he ought not to be heard in this. All
that was said by the Lord Chancellor on the subject under review
was as follows:
"That the practice was the same, he apprehended, in equity as at
law, that a party would not move until he cleared his contempt; but
that the rule must be confined to proceedings in the same cause,
otherwise the consequence would be that a party who was utterly
unable to comply with an order of the court might be prevented from
afterwards prosecuting any claims, however just, against the person
who had succeeded in obtaining that order. Here, the suit was
between the same parties, but it had reference to distinct
properties."
It will be seen that this conflicts with the literal language of
Lord Bacon's ordinance, which was that a party should not be heard,
"neither in that suit,
nor any other," etc.
Several decisions of the Rolls Court in Ireland bearing upon the
question are contained in the first volume of Hogan's Reports.
Thus, in
Anon. v. Lord Gort, p. 77 (1823), a receiver
was
Page 167 U. S. 427
moved for on process against the defendant, who opposed the
application. Counsel for plaintiff insisted that as the defendant
was in contempt, he should not be heard unless he purged his
contempt, citing
Vowles v. Young, supra. The Master of the
Rolls said:
"The general rule is that when a party is in contempt, he will
not be allowed to oppose the relief sought by the plaintiff by
contradicting the allegations in his bill or bringing forward any
defense or alleging new facts; neither will he be heard by
affidavit, except it be made with a view of purging his contempt;
but he may be heard to direct the attention of the court to any
error or insufficiency in the plaintiff's own case, as made by the
bill, as, for example, if it should appear by the bill that
plaintiff's charge only extends over Whiteacre, and the plaintiff,
by motion, sought a receiver over Blackacre."
The application for a receiver would seem to have been one of
the steps in the process of punishment for contempt for not
answering. Thus, in the case of
Fitpatrick v. Hawkshaw,
ib., p. 82, a motion was made for the appointment of a
receiver on process against the defendant, and in the marginal note
it is said: "A defendant who has appeared, but is in contempt for
not answering, is entitled to notice of a motion for a receiver on
process."
A further indication that the rule was not understood to operate
to deny to a defendant a hearing upon matters of strict right is
shown by the case of
Cooke v. De Montmorency, 1 Hogan 181,
where it was held that though a party was in contempt, he might,
notwithstanding, apply for and obtain time to answer the bill and
an order on the plaintiff to stay the entry of process in the
meantime.
In the case of
Valle v. O'Reilly, 1 Hogan 199,
complainant moved for the appointment of a receiver on process
against the defendant on an affidavit stating that the bill was
filed to raise the arrears of an annuity which was still due. The
contempt would seem to have consisted in failure to answer. After
observing that the estate was in the possession of a receiver in
another cause, the Master of the Rolls said:
"As this defendant is in contempt, he cannot be heard to
Page 167 U. S. 428
dispute or deny the plaintiff's case as disclosed by his bill,
but he may be heard to point out the irregularity or impropriety of
any application made by his antagonist. I must refuse this motion,
and give the defendants the cost of appearing here this day."
The cases of
Howard v. Newman, 1 Moll. 221, and
Odell v. Hart, 1 Moll. 492, were decided by the Lord
Chancellor in 1828. In
Howard v. Newman, a rule to refer
the bill for impertinence was obtained by the defendant, against
whom there was process
for want of an answer. The rule was
discharged, the Lord Chancellor saying:
"A party in contempt is not to be heard until his contempt is
cleared, except only to complain that he is irregularly put in
contempt, and ought not to be so. He is precluded from applying for
any order of any kind."
Of course, refusal to allow a party to move until he has
answered, and when he was in default for not answering, cannot
possibly be construed as supporting the contention that when a
defendant had regularly answered, his answer might be stricken from
the files and the case be decided as though no answer had ever been
filed.
In
Odell v. Hart, a motion was made on behalf of the
defendant to set aside as irregular an order which awarded an
attachment absolute (instead of conditional) in the first instance
against him for not bringing in title deeds according to a previous
order. It was objected that the defendant, being
de facto
in contempt, ought to appear
in vinculis, citing
Vowles v. Young, 9 Ves. 172.
The Lord Chancellor said:
"A party in contempt may move by counsel to set aside the order
against him by which he is declared to be in contempt, for
irregularity in that order, without coming
in vinculis,
but for no other purpose, without submitting himself to
custody."
In other words, the party in contempt, when not in custody,
cannot
apply to the court for an order except to set aside
for irregularity the order adjudging him guilty of contempt.
In
Ricketts v. Mornington, 7 Sim. 200, decided in 1834,
we find the first adjudicated case directly referring to the
seventy-eighth ordinance of Lord Bacon. On the authority of the
Page 167 U. S. 429
ordinance and the case of
Vowles v. Young, supra,
defendant objected to the cause being heard on the ground that the
plaintiff was in contempt for disobedience of an order in the case.
The opinion rendered by the vice Chancellor is as follows:
"Suppose the defendant had moved to dismiss the bill, the
plaintiff, notwithstanding he was in contempt, might have come
forward, and assigned reasons why his bill should not be
dismissed."
"Lord Bacon's order, as administered in practice, is confined to
cases where parties who are in contempt come forward voluntarily
and ask for indulgences. But the rules of the court make it
imperative on the plaintiff to bring his cause to a hearing at a
certain time, and therefore the cause must proceed."
Barker v. Dawson and
Parry v. Perryman were
decided, respectively, in 1836 and 1838, and are reported in 1
Coop.Ch.C.. 207. The general rule was stated to be that a party in
contempt could not be heard on other matters, but it was held that
there were exceptions to it, as where an order which was alleged to
be irregular was obtained subsequent to a contempt, and it was
sought to set it aside for irregularity, and "where the party in
contempt was merely protecting himself," in both of which cases the
rule was held not to apply. The Lord Chancellor said that to extend
the rule to the case of an order made subsequent to the contempt
"would place the party in contempt too much at the mercy of his
adversary."
King v. Bryant, 3 M. & C. 191 (1838), was a
foreclosure suit in which the defendant, after appearance, was in
contempt for want of an answer, and was imprisoned under
attachment. A decree was subsequently taken
pro confesso
ordering an account, and the proceedings before the master were had
ex parte, without notice to the defendant. An application
was made by the defendant praying that the order confirming the
report of the master might be discharged, and that it might be
referred back to the master to review his report. An objection made
before the vice Chancellor was renewed on appeal,
viz.,
Page 167 U. S. 430
that the defendant was not entitled to be heard because in
contempt. the Lord Chancellor, however, decided that the defendant
was entitled to be heard to show that the plaintiff had been
irregular in his mode of prosecuting the decree, and also said (p.
195):
"If the plaintiff ought to have served warrants on the defendant
[to attend before the master], and if he ought to have served him
with the order
nisi, it would be a most unjust extension
of the rule against parties in contempt to take away a man's estate
without giving him any opportunity of coming in and protecting
himself."
"The court will not hear a party in contempt coming himself into
court to take any advantage of proceedings in the cause, but such a
party is entitled to appear notwithstanding, and resist any
proceedings taken against him, and it would be a very easy way of
evading that rule if his adversary, instead of giving him notice,
were to avoid serving him, and then to say that he could not take
advantage of the rule in order to impeach the previous proceedings.
However, there is no such practice. . . ."
"The court punishes the defendant's default in refusing to
answer by giving to the plaintiff the benefit of a decree upon the
bill as confessed; but there the advantage stops, and when the
decree is once pronounced, the subsequent duty of the court and its
officers is to execute that decree in the ordinary way.
Accordingly, no authority is to be found in support of the
proposition that upon a decree taking the bill
pro
confesso and directing an account, the account may be
prosecuted
ex parte. The case of
Dominicetti v.
Latti shows that, in the year 1781, the practice was
considered to be directly otherwise. . . ."
"The plaintiff here has miscarried. He has proceeded
ex
parte when he ought to have proceeded by warrants, and the
present application is to protect the defendant against an order
for a foreclosure, obtained upon an irregular report, which can
only be considered as a nullity."
In
Wilson v. Bates, 3 M. & C. 197, the plaintiff,
while in
Page 167 U. S. 431
contempt and in the custody of the sheriff for failure to pay
the costs of a motion, sued out an attachment against the
defendants for want of an answer, under which the defendants were
arrested, and thereupon entered into bail bonds. The vice
chancellor having refused a motion, on behalf of the defendants,
that the attachments against them might be set aside and that the
bail bonds might be ordered to be cancelled, the motion was renewed
before the Lord Chancellor by way of appeal. Counsel for defendants
contended that the proceedings of the plaintiff were irregular
because a party in contempt could not take any proceedings in the
cause, and cited the seventy-eighth ordinance of Lord Bacon and
Vowles v. Young, supra. Counsel for plaintiff
characterized the proposition that a plaintiff could not take any
step in a cause, for the reason that an attachment had issued for
nonpayment of costs, "as new, and, if established, would be a
dangerous extension of the ordinary rule with respect to
parties in contempt." The Lord Chancellor, after alluding to the
fact that
no case upon the point had been produced, and
that the argument was mainly grounded upon the seventy-eighth
ordinance of Lord Bacon, said (p. 200):
"That ordinance, although the foundation of the practice, can
only be construed now by the practice which has since prevailed
with reference to it. It is quite obvious that its terms, if
strictly acted upon, would produce a very different state of
practice from that which is recognized in modern times. If I had to
decide upon that in the first instance, and were called upon to
settle a rule for future guidance, I certainly never should lay
down any such rule. It would seem extraordinary that a party who
may not be able to pay the costs of a refused motion should be
therefore absolutely stopped from asserting his rights. At the same
time, if the practice be established, it would not be for me to
alter it. Now although it may be generally true that a party in
contempt cannot be heard to make a motion, he is nevertheless
permitted to be heard upon a motion to get rid of that contempt --
a case for which, so far as I can see, Lord Bacon's ordinance makes
no provision. It is also well settled that if a party in
contempt
Page 167 U. S. 432
is brought into court by any proceedings taken against him, he
has a right to be heard in his defense and in opposition to those
proceedings -- another case which is inconsistent with Lord Bacon's
ordinance, if construed strictly."
The conclusion was reached that there was an absence of all
authority to sustain the proposition contended for, and that the
vice chancellor was right in permitting the plaintiff to proceed in
the cause.
In
Bickford v. Skewes, 10 Sim. 193 (1839), plaintiff
moved to defer the trial of a cause until the defendant had cleared
himself of a contempt.
The vice chancellor said (p. 196):
"The motion now before me is one of the first impression. A
party who is in contempt may at any time clear his contempt. At the
time the Lord Chancellor's order was made, the defendant was not in
contempt. That order is still in full force, and I cannot
understand how the circumstance that the defendant had subsequently
come in contempt can give to the plaintiff the right to postpone
the trial of this action, which, to a certain extent, he is under
an obligation to try. The defendant may, perhaps, clear his
contempt before the trial, but whatever may be the circumstance of
the defendant, the order of the court may remain as it is. Although
the cases cited afford some countenance for this application, I
cannot think that they warrant it, and therefore I shall refuse the
motion without costs."
Here it appears that the defendant, though in contempt, was
conceded to be entitled to participate in the trial of the
cause.
In
Everett v. Prythergch, 12 Sim. 363 (1841), it was
held that a defendant, though himself in contempt for want of
answer, might except to the bill for scandal, but not for
impertinence.
In
Cattell v. Simons, 5 Beav. 396, it was held that it
was competent for a plaintiff, though in contempt, to refer for
scandal and impertinence to an affidavit filed on the part of the
defendant in opposition to a motion filed by the plaintiff, while
he was in contempt for nonpayment of costs, asking that costs be
set off between the parties. The Master of the
Page 167 U. S. 433
Rolls said that the motion was one which the plaintiff was
clearly entitled to make, being an application for relief against
the process of attachment.
In
Morrison v. Morrison, 4 Hare 590 (1844), it was held
that a party in contempt for nonpayment of costs, and who had been
served with an order
nisi to confirm a report, might,
notwithstanding his contempt, take exceptions to the report, and
draw up, pass, and enter an order to set down the exceptions, and
might also present and be heard upon his petition to discharge the
report as irregular, and for leave to open the accounts allowed in
former reports, on the ground that items therein were allowed in
the absence of the petitioner, and while the suit was abated. A
motion to discharge the order setting down the exceptions, and that
the exceptions might be taken off the files, was made upon the
ground that a party in contempt cannot take any active step in the
cause until he had cleared his contempt. Counsel, in opposition to
the motion, contended that the steps taken by the defendant were
purely defensive, and characterized as "most extravagant" the
proposition
"that a party who was unable to pay a sum for costs should be
precluded from taking any step in a cause, while his adversary
might proceed, and his entire rights on the subject of the suit be
concluded, without allowing him to be heard."
The vice chancellor held (p. 594) that:
"What the petitioner is in truth doing is seeking to protect
himself against the proceedings which have been taken in the cause,
and the cases of
Wilson v. Bates and
King v.
Bryant show that in such a case, the being in contempt will
not now prevent,
if it ever should have prevented, the
party from applying to the court."
In
Oldfield v. Cobbett, 1 Phillips Ch. 613 (1845), it
was held, among other things, that a party who is in contempt for
nonpayment of costs in the suit is not thereby prevented from
moving for leave to defend it
in forma pauperis.
Chuck v. Cremer, 1 Coop.Ch.C. 205, was decided in 1846.
A defendant, having unsuccessfully sought to dissolve an injunction
obtained
ex parte, gave notice of motion by way of appeal.
It was objected that the defendant could not be
Page 167 U. S. 434
heard, because previously to the giving of notice an attachment
had issued against him, when abroad, for not having put in an
answer. The decision upon this objection is thus reported:
"The Lord Chancellor said he was of opinion that the appeal
motion could not proceed. That a party was entitled to be heard if
his object was to get rid of the order or other proceeding which
placed him in contempt, and he was also entitled to be heard for
the purpose of resisting or setting aside for irregularity any
proceedings subsequent to his contempt, but he was not generally
entitled to take a proceeding in the cause for his own benefit.
That there were exceptions to the last rule, but they were few in
number."
In
Futvoye v. Kennard, 2 Giff. 110 (1860), the
plaintiff moved to discharge an order in the cause, and the
defendants took the preliminary objection that the plaintiff, being
in contempt for the nonpayment of the costs of a motion, which had
been refused with costs, could only be heard to purge his contempt.
On the intimation of the vice Chancellor that he thought the
objection could not be maintained, the objection was not pressed,
and the motion was heard and refused.
In
Fry v. Ernest, 12 Weekly Reporter 97 (1863), a bill
was filed by mortgagees for the purpose of enforcing their
security. The defendant put in his answer, and also filed a bill in
the cause of Ernest against Partridge (to which Fry and several
others were made defendants) for the purpose, among other things,
of setting aside the mortgage security. A demurrer being allowed to
this bill, Ernest afterwards filed in
Fry v. Ernest a
concise statement containing in substance the same averments as
those in
Ernest v. Partridge, and exhibited interrogations
for the examination of the plaintiff Fry. Upon a summons taken out
by the plaintiff, the chief clerk made an order enlarging the
plaintiff's time to answer the interrogatories for one month, after
payment by the defendant of the costs of the demurrer in
Ernest
v. Partridge. Counsel for the plaintiff contended that the
concise statement must be treated merely as a cross-bill, and that
the defendant could not be allowed to harass the plaintiff with a
second cross-bill until he had paid the costs of the first.
Page 167 U. S. 435
"Wood, V.C., said that, according to the general rule, a
defendant, though in contempt, was at liberty to take every step
necessary for his defense. He looked upon this mode of proceeding
as of a nature purely defensive, and the defendant was therefore
entitled to file a concise statement and interrogatories, which
were material for his defense, and the plaintiff must answer within
the usual time. The order of the chief clerk would be discharged
with costs; such costs, however, as the defendant was in default
for his former costs, were not to be paid to him."
In
Haldane v. Eckford, L.R. 7 Eq. 425 (1869), it was
held that, although a defendant is in contempt not for nonpayment
of costs, but for noncompliance with orders of the court, he is
entitled to take any step required for the purposes of his defense.
The report of the case (p. 426) reads as follows:
"The vice chancellor said that, although the contempts committed
have been of the most flagrant kind, as these documents were
required by the defendants for the purposes of defending
themselves,
he had no jurisdiction to refuse the
order."
In
Chatterton v. Thomas, 36 L.J.Ch. 592 (1886), a
plaintiff in contempt was held to be at liberty to proceed with the
cause in the ordinary way, and a special order for leave to amend
was granted to him.
Other decisions illustrating the general rule that a party in
contempt cannot be heard to ask a favor are digested by Chitty in
his Equity Index, vol. 5, p. 4366, but it is unnecessary to
particularly refer to them, as none of them are relied on in
argument or change the result of the foregoing cases.
It is manifest from this review of the English cases that they
lend no support whatever to the claim that the English Court of
Chancery claimed to exercise the power to strike out an answer, and
render a decree
pro confesso, as a punishment for
contempt. It also clearly establishes that the seventy-eighth
ordinance of Lord Bacon was never construed or enforced according
to its strict import if, under that import, it authorized the
conclusion that a power existed in a Court of Chancery to condemn
without a hearing.
Page 167 U. S. 436
The conclusion which we have reached accords with that of
Daniell, who, in his Chancery Pleadings and Practice (vol. 1, pp.
*504, *505), says:
"Besides the personal and pecuniary inconvenience to which a
party subjects himself by a contempt of the ordinary process of the
court, he places himself in this further predicament,
viz., that of not being in a situation to be heard in any
application which he may be desirous of making to the court. Lord
Chief Baron Gilbert lays it down that"
"upon this head it is to be observed, as a general rule, that
the condemner, who is in contempt, is never to be heard, by motion
or otherwise, till he has cleared his contempt and paid the costs
-- as, for example, if he comes to move for anything, or desires
any favor of the court. . . ."
"The rule that a party in contempt cannot move till he has
cleared his contempt is, in practice, confined to cases where such
party comes forward voluntarily and asks for an indulgence, and
therefore a defendant cannot object to a cause being heard because
the plaintiff is in contempt. So, a defendant in contempt is
entitled to production of documents."
The learned author nowhere suggests in his treatise that, under
any conceivable circumstance has a Court of Chancery in England
ever allowed a decree pro confesso to be taken, otherwise than upon
default for appearance for answer. See chapter 11, p. *517, "On
Taking Bills pro Confesso."
The decisions in this country, with two exceptions, which we
have in the outset referred to, substantially maintain the view we
have reached of the question under consideration. An early case
holding the correct rule,
viz., that a party in contempt
was not entitled to be heard upon an application not of strict
right, but a matter of mere favor, is
Johnson v. Pinney, 1
Paige 646, decided in 1829. In that case, after an order had been
entered closing the proofs, the defendant applied for a commission
to take the testimony of a witness. Objection was made that the
defendant was in contempt for not paying a bill of costs on a
motion previously made by him to dissolve an injunction in the
suit. In granting the application upon terms, the Chancellor
said:
"It is a general
Page 167 U. S. 437
rule that a party cannot apply to the court for a favor while he
is in contempt.
Vowles v. Young, 9 Ves. 173; Pract.Reg.
138;
Green v. Thompson, 1 Sim. & Stu. 121."
The doctrine of this decision was adopted by the Supreme Court
of New Hampshire in
Robinson v. Owen, 46 N.H. 38
(1865).
In 1846, in
Ellingwood v. Stevenson, 4 Sandf.Ch. 366,
the bill having been taken
pro confesso when the defendant
was in default for not answering, a motion was made to open the
default and for other relief. The vice chancellor said (p.
368):
"3. The motion to open the default for not answering would be
granted upon terms but for the contempt for which the attachment is
ordered. His application is made to the favor of the court, and he
cannot be heard until his contempt be purged. Gilbert For.Rom. 102;
1 Daniell 655;
Johnson v. Pinney, 1 Paige 646."
In
Brinkley v. Brinkley, 47 N.Y. 40, 49, after
reviewing the authorities, it was held that a court which has
control of its own proceedings can refuse the benefit of them to
the party in contempt,
when asked as a favor, and can
prevent him from taking any progressive proceedings against him
adversary, but it has no power to stay him in his proceedings by
motion or appeal where the object is to rid himself of the alleged
contempt or show that the order which he did not obey was
erroneous. While the order reviewed provided that unless the
defendant complied with a certain order, his answer should be
stricken out and the cause should proceed as though there was no
answer, the reviewing court held that the order in this particular
was conditional, and not final and absolute, and was therefore not
appealable.
However, in the case of
Walker v. Walker, 82 N.Y. 260,
the Court of Appeals of New York declared that the rule was broader
than that laid down in
Brinkley v. Brinkley, and
maintained also
that it had been enforced with much rigor by
the English courts, and concluded its consideration of the
subject by saying:
"That there has long been exerted by the Court of Chancery in
England the power to refuse to hear the defendant when he was in
contempt of the court by disobeying its orders, and that that power
was in the courts of
Page 167 U. S. 438
chancery of this country."
The expression "the power to refuse to hear the defendant" was
manifestly intended to be understood as meaning that a court of
equity might disregard any answer lawfully filed by the defendant,
and proceed to adjudicate upon the claim of the adversary party as
though in contempt for want of answer. In the case before the
court, the answer of a defendant in a divorce suit had been
stricken from the files for failure to obey an order to pay alimony
and counsel fees, though a decree was not granted as a matter of
course, but a reference had been directed to take proof of the
facts stated in the complaint. Immediately after stating that the
rule was broader than that laid down in the
Brinkley case,
the learned judge who delivered the opinion of the court said (p.
262):
"Chief Baron Gilbert lays it down in his Forum Romanorum (p. 33)
that,"
"if the defendant appeared before the
secundum
decretum, he was liable to a mulct, for he could not be heard
in the cause till he had cleared his contempt. . . ."
"It is suggested in
Cooper's Cases (temp.Cott. 209)
that this is merely a statement of the practice according to the
canon law. But the Chief Baron says at another place (p. 71) that
'the answer will not be received without clearing his contempt,'
and at another (p. 211):"
"So it is where a man hath a bill depending in court, and falls
under the displeasure of the court, and is ordered to stand
committed. Here, when his cause is called, if the other side insist
that he hath not cleared his contempt, nor actually surrendered his
body to the warden of the Fleet, he must do both these things
before his cause can be proceeded in."
The statement in the opinion as to the practice of the Court of
Chancery in England does not, as we have shown, accord with the
authorities, and it is equally clear that the citation from the
work of Baron Gilbert does not justify the conclusion for which it
was cited. This is abundantly shown by the citations we have made
from the work of Baron Gilbert, confirmed by an analysis of the
passages quoted. Thus, the extract from page 33 is from a chapter
which is devoted to a comparison or the practice under the civil
and canon law
Page 167 U. S. 439
with that of the English Court of Chancery in the particular of
compelling an appearance and answer by a defendant to a bill, and
the particular extract cited was a statement of the canon law. The
secundum decretum, or second decree, was the last step in
the process employed to compel an appearance in the cause, and only
issued at a time when the defendant was in default, and could not
file his answer except by leave of the court.
So, the statement that "the answer will not be received without
clearing his contempt" was made in the course of a consideration of
the various processes that follow the filing of the bill, designed
to secure an appearance and answer of the defendant. The author had
previously observed that where an attachment by proclamation (one
of the steps in the process to compel an appearance and answer) had
issued, the defendant could not, as of course, purge his contempt
by a mere tender, and had also remarked that, by the very fact of
an attachment, he was required to answer, and also clear his
contempt at the same time, adding:
"But the usual way is not to take the penalty, which is no more
than for the clearing his contempt, till he hath answered, for,
when the penal sum is received, the defendant may reasonably say
that the fault is purged, and so there would be no sufficient
foundation to retain the party or carry on the process, in case he
will not answer, and therefore the usual way is for the plaintiff
to insist that the defendant should answer, but the answer will not
be received without clearing his contempts."
The case spoken of was one where the defendant was in actual
custody, liable to be coerced into paying the costs of the
contempt.
The extract from page 211 had reference to the case of a
plaintiff, and was in effect merely a declaration that the
court might stay the proceedings in the cause until the contempt
was purged.
Indeed, there is nowhere in the Forum Romanum anything
suggestive of the existence of a practice in the English Court of
Chancery in accord with the power which the New York
Page 167 U. S. 440
court mistakenly considered as always exercised by that
tribunal.
It needs, however, no critical review of the passage from Baron
Gilbert cited by the New York court to establish that the
construction put upon it was a mistaken one, for Baron Gilbert
leaves no doubt in another passage not cited by the New York court
that the opinion attributed to him by the New York court was
unfounded. At page 102 of the Forum Romanum, speaking of the steps
usually taken to compel a further answer where the answer of a
defendant had been held insufficient, he said:
"And upon this head it is to be observed as a general rule that
the contemner who is in the contempt is never to be heard, by
motion or otherwise, till he hath cleared his contempt, and paid
the costs. As, for example,
if he comes to move for anything,
or desires any favor of the court, if the other side says or
insists he is in contempt, though it is but an attachment for want
of an answer, which, if not executed, is only ten shillings, and,
if executed, is twelve shillings and six pence; yet even in this
case, he is not entitled to be heard till he hath paid these costs
(however small they are). He must first pay them to the party or
his clerk in court, and produce a receipt for them in open court,
before he can be heard, and this is always allowed as a good cause
against hearing of the contemner in any case whatsoever."
The English authorities cited by the New York court to support
its conclusion are
Maynard v. Pomfret, Vowles v. Young, Heyn v.
Heyn, Clark v. Dew, Anon. v. Lord Gort, and
Valle v.
O'Reilly, supra. The review we have made of these cases does
not, as we have already stated, induce us to regard them as
sustaining the doctrine of the New York decision.
Nor is the opinion expressed in the
Walker case
supported by the American cases to which reference is made therein,
viz.: Mussina v. Bartlett, 17 Ala. 277;
Rutherford v.
Metcalf, 5 Hayw. (Tenn.) 58, 61, and
Saylor v.
Mockbie, 9 Ia. 209, 212.
Mussina v. Bartlett, decided in 1839, was a case where
the defendant was in default for answer, and he was held
incapacitated
Page 167 U. S. 441
thereby from appearing to contest the complainant's demand
before the clerk and master to whom, after decree
pro
confesso, the bill had been referred to take an account.
Rutherford v. Metcalf, 5 Hayw. (Tenn.) 58, 61, was a
case where, on a hearing upon a proceeding to punish for breach of
an injunction, an answer of one of the defendants in the cause, not
a party to the contempt proceeding, was offered, but the court
refused to receive it on the ground that, whether the injunction
was rightfully issued or not, the defendant should submit to it
until he had procured a dissolution of the injunction. In the
course of the opinion, in stating the practice upon proceedings for
contempt, the court said (though the question was not before it for
decision) that after a party had been found guilty of contempt, "he
must stand committed and pay the costs, and then he cannot be heard
in the principal cause until he has yielded obedience to the
injunction." The authorities for the latter statement were the
passages in Practical Register and Comyn's Digest already alluded
to.
Saylor v. Mockbie was decided in 1859, and was a case
where the application was to the favor of the court. The defendant,
being in default for answer, also violated an injunction which had
been granted in the cause, and, on an attachment's being issued, he
was brought into court, filed his answer to the bill and to the
rule granted against him, and moved to dissolve the injunction. The
court, after observing that, throughout the whole of the
proceedings complained of, the defendant was in default, held that
until he had purged himself of the contempt in disobeying the rule
of the court, the court might well refuse to receive his answer to
the bill (which was only entitled to be filed as a matter of
favor), or consider the matters therein set up by way of excuse for
his refusal to obey the order.
It is then manifest that the decision in
Walker v.
Walker finds no support in the authorities upon which it is
based. It was accepted, however, without any review of the
authorities, in
Pickett v. Ferguson, 45 Ark. 171, 191
(1885), as correctly stating the law on the subject, though both
the
Page 167 U. S. 442
trial court and the reviewing court shrank from enforcing the
doctrine to its logical consequences, as, though the complaint of a
plaintiff in contempt was removed from the files, and he was denied
the right to answer a cross-bill, in determining the questions
presented by the cross-bill, the trial court considered the
evidence which had been taken in the case before it and in another
cause, supposed to embody all the material facts upon which the
rights of the parties depended. The reviewing court also held that
if the complainant below had been prejudiced by the action of the
trial court, the record furnished the means of correcting the
error, and, after a consideration of the whole record, ordered a
personal judgment in favor of the complainant for a large
amount.
Hazzard v. Durant, 11 R.I. 195, has in one instance
been referred to as a case where the court was much perplexed over
the proper decision of a like question, and had declined to
definitely decide it. That case was one where a party in contempt
for violating an injunction was also in default for answer, and a
decree
pro confesso had been taken. He was, however, held
entitled to take such steps in the cause as were matters of strict
right, and, while refusing an application of the petitioner to be
let in to defend, the reviewing court held that it did not follow
that the suit was to be abandoned to the plaintiffs, and, as the
defendant denied the truth of the averments in the bill, the
question was reserved as to whether a decree ought to be entered
against the defendant without first referring the case to a master
"to ascertain the truth of the allegations,
so that our minds
and consciences may be satisfied upon the point." This branch
of the case having been subsequently argued, the court rendered an
opinion, from which we extract as follows (12 R.I. 99):
"The defendant entreats for leave to answer, denying them [the
averments of the bill]. Shall we then proceed as if they were true,
because the defendant, being in contempt, and unable to relieve
himself, cannot make his denial effectual by answer or defense? The
question is novel, but we think it admits of but one solution. The
court must be careful not to become an instrument of injustice,
even against a person
Page 167 U. S. 443
who has forfeited all claims upon its favor. We decide,
therefore, that the cause must go to a master to inquire into the
truth of the inculpating allegations of the bill, and, if he finds
them true to any extent, to take the account accordingly, making,
for the sake of dispatch, one report of the entire matter. We also
decide that, in making the inquiry, the master shall not be
confined to testimony furnished by the complainants, but shall
notify Durant, so that he may be present, if he sees fit, to aid
the inquiry, and to testify himself, and furnish the testimony of
others."
Nor is there force in the contention that
Allen v.
Georgia, 166 U. S. 138,
impliedly sustains the validity of the authority exercised by the
court of the District of Columbia in the matter now under
consideration. In the
Allen case, the accused had been
regularly tried and convicted, and the error complained of was that
the Georgia Supreme Court had violated the Constitution of the
United States in refusing to hear his appeal because he had fled
from justice. In affirming the judgment of the Supreme Court of
Georgia, the court called attention to the distinction between the
inherent right of defense secured by the due process of law clause
of the Constitution and the mere grace or favor giving authority to
review a judgment by way of error or appeal. It said (p.
166 U. S.
140):
"Without attempting to define exactly in what due process of law
consists, it is sufficient to say that if the supreme court of a
state has acted in consonance with the constitutional laws of a
state and its own procedure, it could only be in very exceptional
circumstances that this Court would feel justified in saying that
there had been a failure of due legal process. We might ourselves
have pursued a different course in this case, but that is not the
test. The plaintiff in error must have been deprived of one of
those fundamental rights the observance of which is indispensable
to the liberty of the citizen, to justify our interference."
The same view had been previously announced in
McKane v.
Durston, 153 U. S. 687,
where the Court said:
"An appeal from a judgment of conviction is not a matter
Page 167 U. S. 444
of absolute right, independently of constitutional or statutory
provisions allowing such appeal. A review by an appellate court of
the final judgment in a criminal case, however grave the offense of
which the accused is convicted, was not at common law, and is not
now, a necessary element of due process of law. It is wholly within
the discretion of the state to allow or not to allow such a review.
A citation of authorities upon the point is unnecessary."
Whether, in the exercise of its power to punish for a contempt,
a court would be justified in refusing to permit one in contempt to
avail himself of a right granted by statute, where the refusal did
not involve the fundamental right of one summoned in a cause to be
heard in his defense and where the one in contempt was an actor
invoking the right allowed by statute, is a question not involved
in this suit. The right which was here denied by rejecting the
answer and taking the bill for confessed, because of the contempt,
involved an essential element of due process of law, and our
opinion is therefore exclusively confined to the case before
us.
The demonstration of the unsoundness of the contention that
courts of equity have claimed and exercised the power to suppress
an answer, and thereupon render a decree
pro confesso,
which results from the foregoing review of the authorities, is
strengthened by the reflection that if such power obtained, then
the ancient common law doctrine of "outlawry," and that of the
continental systems as to "civil death," would be a part of the
chancery law -- a theory which could not be admitted without
violating the rudimentary conceptions of the fundamental rights of
the citizen.
It being therefore clear that the Supreme Court of the District
of Columbia did not possess the power to disregard an answer which
was in all respects sufficient, and had been regularly filed, and
to ignore the proof taken in its support, the only question
remaining is whether a judgment based upon the exercise of such an
assumed power is void for want of jurisdiction, and may therefore
be collaterally attacked. It cannot be doubted that where a
judgment is rendered without the issuance and service of summons
against a party who did
Page 167 U. S. 445
not enter an appearance, the court rendering it is without
jurisdiction to do so, and it can be assailed as void whenever
presented as a muniment of right against another. Looking at the
substance, and not the form, of the decree in the case of
Hovey
v. McDonald, upon which the rights of the plaintiff in error
depend, it is plain that the judgment was substantially one without
a hearing, for of what efficacy or avail was the summons to appear
when the court which issued the summons rendered its judgment upon
the theory that the summons was inefficacious, and that the
defendant had no right either to appear or be heard in his defense?
As said by this Court in
Adams v. Postal Telegraph Cable
Co., 155 U. S. 689,
"[t]he substance, and not the shadow, determines the validity of
the exercise of the power."
The case at bar is within the principle of the decision in
Windsor v. McVeigh, supra. It is also controlled by the
decision in
Reynolds v. Stockton, 140 U.
S. 254. In that case, the scope and object of a suit in
a court of the State of New York -- a judgment recovered in which
was sought to be enforced in a court of the State of New Jersey --
was the subjection of a fund in the hands of the Superintendent of
the Insurance Department of the State of New York to the
satisfaction of claims against a New York insurance company which
had become amalgamated with a New Jersey corporation which had
passed into the hands of a receiver. The New York company and the
New Jersey company and its ancillary receiver in the State of New
York, one Parker, were made parties defendant. There was no actual
appearance by Parker or the New Jersey company subsequent to the
filing of their answer. Parker took issue merely upon the
allegations of the petition, and the cause proceeded to trial upon
such issue before a referee. Upon the report of the latter, a
decree was entered which finally disposed of the fund. Paragraph 8
of that decree contained the following reservation:
"And it is further ordered that either party to this action, or
any person interested in the subject matter thereof, have liberty
to apply for further directions on the foot of this
Page 167 U. S. 446
decree, and the question of the indebtedness of Joel Parker, as
receiver of the New Jersey Mutual Life Insurance Company, and the
former superintendent, John F. Smyth, and William McDermott, and
Messrs. Harris and Rudd, reported by the referee Samuel Prentiss,
be reserved."
Subsequently to the entry of the decree just referred to, on
notice to the attorney who had represented Parker, a judgment was
entered in favor of plaintiffs against the receiver Parker and the
New Jersey Company for more than a million of dollars. This was the
judgment which was sought to be enforced in New Jersey against the
assets in the hands of the receiver in that state. The courts of
New Jersey decided that the judgment was void, and this Court
affirmed such decision on the ground that the decree passed upon
questions not at issue in the cause, and was rendered against a
party who had taken no actual part in the litigation subsequent to
the filing of his answer. There is no distinction in principle
between determining a cause upon issues not raised by the pleadings
in the actual absence of the party, and rendering a decree by
refusing to permit a defendant to be heard in his defense or to
consider the merits of a sufficient defense, and, indeed, by
striking the pleading containing such defense from the files.
As a consequence of the foregoing views, we conclude that the
Court of Appeals of New York did not err in refusing to give effect
to the judgment in question as against a member of the firm of
Riggs & Company, as in the courts of the District of Columbia
the decree in question was not entitled to be regarded as valid as
to them. Whether, since the rendition of the judgment for any
cause, such as by reason of active steps taken by McDonald and
White, in the courts of New York, assailing the validity of the
judgment in question, those parties are now estopped from asserting
the invalidity of the decree (
Lawrence v. Nelson,
143 U. S. 223,
and cases there cited), we need not determine. It is sufficient for
the purposes of the case now before us to say that, as the record
contains no proof of facts constituting an estoppel as to Riggs
& Company, the judgment is not binding upon them.
From the fact, however, that we rest our decision on the
Page 167 U. S. 447
want of power in the courts of the District of Columbia to
suppress an answer of parties defendant, and after so doing to
render a decree
pro confesso as in case of default for
want of an answer, we must not be considered as implying that we
think the purchasers of the bonds, under the circumstances
disclosed by the record, took them subject in any way to the
lis pendens created between the actual parties to the
controversy arising from the suit, or that such purchasers were or
could be in any way bound by the result of that litigation.
Judgment affirmed.