Remley v. DeWall , 41 Ga. 466 ( 1871 )

.LOCHRANE, C. J.

In January, 1870, Mr. DeWall filed his bill against Remley, for dissolution of partnership account, settlement, appointment of Receiver and injunction. The Judge granted a rule, calling on Remley to show cause why the injunction should not be granted, and the Receiver appointed, and, until the hearing, restrained the defendant, under the prayer of the bill, from selling, or otherwise disposing of the stock in trade, or assets, books, or other articles belonging to the copartnership.

At the hearing, the Judge, by agreement of counsel of both the complainant and defendant, passed the following order: “Upon the defendant giving good security, in the sum of $10,000 00, to fully comply with the interlocutory orders of the Chancellor in this Court, as well as to answer fully the decree to be rendered in this case, it is ordered, that the injunction be denied and a motion to appoint a Receiver be refused. And, by consent of counsel in open Court, it is ordered that Samuel C. Elam, an attorney of this Court, be and he is hereby .appointed Auditor, with full power to hear and determine, (and to be aided by a Clerk,) all the matters in issue between the parties, and report the same to me, as Chancellor in vacation, at the earliest practicable day, and *that the time and place of the sitting of said Auditor shall be made known to the parties, or their counsel, and for nonconformity to any interlocutory order in said case, he shall be subject to attachment for a contempt, as well as liable on said bond.”

Under the powers and direction of this consent order, the Auditor proceeded to hear the matters in issue, and made his report on the 27th January, 1870, and, by consent of parties, on the 16th of February, 1870, the report of the Auditor was made the judgment of the Court. Under this report the firm was dissolved, the stock in trade left in the hands of Remley and the indebtedness was to be paid by him. The half of the surplus stock, $419 75, was to be paid over to DeWall, and the accounts due the firm were to be equally divided between the parties.

It appears by the petition of DeWall, which is without date, that Remley did not, in the spirit of the order, carry out the direction of the'Court, and he set forth by complaint to the Judge below, that Remley had collected upon the books of the partnership some $400 00 before the division of the accounts. He complained that the list offered for division by Remley were incomplete, but after some delay the division was made. And DeWall, by his petition, set forth that, of the accounts turned over to him, Remley had collected the sum of $220 00; that he had tried every way to get Remley to pay him the amount thus collected before the division, and also to let him have the books of Remley & Company to draw off and prepare for collection such accounts as he had; that Remley had refused, and that he had given him, by written demand, notice that if he did not comply he would .apply for an order attaching him for contempt. He also, by the petition, alleged that Remley was about to leave the State without compliance in the premises, and closed his petition with an application for an order nisi against Remley, requiring him to show cause why he should not be attached for contempt.

The Judge, on February 4th, 1870, passed an order requiring Remley to show cause why he should not be punished *for contempt of the order of the Court in the several matters complained of in this petition, and, until cause was shown, ordered that Remley should not leave the jurisdiction of the Court.

On the 3d of March following, Remley having failed to appear, the Judge ordered that the sheriff arrest Remley and bring him before the Court, and that he show cause at once, why he had not fully discharged the decree in the case, and why he should not be adjudged in contempt for his failure therein, and for failure to resnond to the order served on him on the 23d February. The record discloses that no further .action was had in the matter until the 22d of April following, when time was allowed until the following morning for Remley to make his answer to the orders referred to.

In response, on the 23d of April, Remley, by his counsel, demurred to the proceedings had, upon the grounds: 1st. That the rule nisi was improvidently granted in this—that there was a full and final decree by the judgment of 1st February, 1870. 2d. Because the process was not annexed to the original bill, etc. 3d. Because it was not served by the sheriff. ' 4th. Because the remedy at law was adequate.

He also answered and admitted that he had collected the amounts, less some small credits claimed. He alleged his readiness to pay the amount he set up as due, and to make full settlement on the basis 'of calculation he set out in his answer. He denied all intention of treating the orders of the Court with contempt. He concluded with the assertion that he cannot be attached for contempt, and that DeWall’s remedy was to proceed by suit to enforce his demand.

Upon the hearing the Judge overruled the demurrer, and passed an order (after reciting the history - ’of the case) adjudging Remley to be in contempt, allowing him three days to purge the contempt by paying the sum of $424 50 to complainant. Upon failure, the Clerk of the Court was directed to issue the attachment against him for contempt in the premises, directing all lawful officers to seize his body and confine him in jail, without bail or main prize, until he *paid over the money. This final order bears date August 12th, 1870.

Upon this plaintiff in error assigns error: 1st. Upon overruling the demurrer. 2d. Upon ordering the whole amount paid, and disallowing the offsets claimed, and other grounds not necessary to recite. The Judge, in his notes to the decision complained of, states the matters of credit were not pressed in the argument below.

1. The question before us is, whether the Judge was right or wrong in passing the order of August 12, 1870, and the solution of this question depends upon certain principles of equity, jurisdiction lodged in the Judges of the Superior Courts of this State, and the powers which the Chancellor may exercise in the enforcement of his orders against parties over whom the jurisdiction is exercised. It appears from this record, that the parties were copartners, that a hill for account and settlement and dissolution had been filed in the Court, that by consent the matters in issue were submitted to an Auditor, that his report was made, by consent, the judgment of the Court, and the plaintiff in error, under the judgment, retained the assets and business of the firm. It also appears that he did not comply with -the judgment upon his part, but failed, and refused to carry out the obligations imposed upon him by the order of the Court in the premises.

This order, dated 1st February, 1870, we find still open and unperformed. Was the judgment a decree for money which, from the moment it was passed, deprived the Chancellor of all further control and jurisdiction, and left complainant in the original bill without remedy except by the tedious processes of an ordinary suit at law for the amount awarded him by the Auditor; or was it a settlement under the order of the Court over which he not only had the right, but it was his duty to enforce it by the powers incident to his office, and invoked by the disobedience and disregard with which it was treated? We hold that the order of the Court making the report of the Auditor its judgment, was such a proceeding in equity as retained in the hands of the Chancellor full and unquestioned authority, jurisdic.tion and *power to enforce its terms, and compel obedience to its mandates by the parties. The money held by Remley is not a debt in the ordinary sense of the term; it is the property of DeWall, and' he must deliver it under the order of the Court. He cannot take the benefits of the order and refuse to discharge the counter duty it imposes. When a party refuses full and prompt compliance in good faith, with the orders of the Chancellor, his power by attachment may be exercised to compel obedience and compliance.

2. And in this case we hold that the rule nisi for contempt,' etc., was properly issued. As to its service by a constable in the first instance, we do not think that such a proceeding is within the provision of the Code, section 4128, and could only be served by the sheriff or his deputy, or a coroner. This section applies to original proceedings by bill, and not to the service of rules or orders nisi; for in such cases the Judge may direct them service. Besides, before the hearing, the sheriff did execute in this case the order of March 3d, and Remley’s appearance was in obedience to both the orders before he made-answer.

3. Again, we hold that when he came before the Court in pursuance of the attachment nisi, he was not in a position to litigate on claims of credit, or discuss the merits or demerits of the demand. That question had been settled and he stood before the Chancellor on the naked issue of contempt of the Court, for non-compliance with its -order. This question had first and primarily to be disposed of; the money which he held froni the collection of the claims which were to be divided, was necessarily to be delivered under the order of the Court, before the contempt could be purged; and we add that the balance awarded him by the Audito'r, falls within our view of the case, in the same sanctity of duty to pay over on his part, as the money collected on the divided account. It was his and under the order of the Court on the report of the Auditor, it was his right to have it promptly and fully delivered to him. We therefore hold that the Court was right in granting the order and using its processes and powers of attachment to enforce it.

*4. Again, we say, in view of this case, that the order adjudging Remley in contempt, and ordering his arrest and confinement in jail until he complied with the order of the Court was not in conflict with the constitutional inhibition against imprisonment for debt. That provision declares— as a fundamental principle and declaration of right—that the person of a debtor shall not be detained in prison after delivery, for the benefit of his creditors, all of his estate not expressly exempted, by law, from levy and sale. In our view of this qase, Remley does not stand in the place of a debtor. The order and decree against him was for the performance of a duty, arising out of the dissolution of the partnership, under orders of' the Court, and invoked by consent of the parties, and or the discharge of which he stood amenable to the further orders of the Chancellor.

S. Again, we say, that in the 'exercise of this power by the Chancellor, Courts' will reluctantly interfere, as all Courts must, as incident to their very existence, exercise discretionary judgments in matters of contempt. To make this power the capricious matter of other judicial interference elsewhere, would be to strike at the independence and integrity of the judicial office. Except the act be a flagrant abuse of the power, exhibiting, in its exercise, a clear violation of legal discretion, this Court will not interpose its arm to protect the offender who has drawn down upon himself its judgments.

In this case, holding as we do that the right to enforce, by attachment for contempt, the order under review, we see no abuse of the power, but, on the contrary, a forbearance which is almost, in its leniency, without a precedent or a parallel.

Judgment of the Court below affirmed.