French v. Commercial National Bank , 79 Ill. App. 110 ( 1898 )

Me. Presiding Justice Windes

delivered the opinion of the court.

Numerous errors are assigned and divers contentions are made by counsel as to why the order fining and committing appellant to jail is erroneous, but it seems unnecessary to consider but two questions: first, whether the court had jurisdiction to make the order September 21, 1897, there being no question made as to the jurisdiction of appellant’s person; and second, if the court had jurisdiction to make the last mentioned order, then was the punishment imposed on appellant unreasonable and excessive.

1st. The allegation of the bill as to the return on the execution is that the sheriff “ returned said writ of execution to this court, the said return stating, in effect, that the said sheriff had been unable to satisfy said writ of execution and was unable to find any property in Cook county on which to levy the writ, and he, said sheriff, therefore returned the same no property found and no part satisfied, as by said writ of execution and the return of the said sheriff indorsed thereon as aforesaid, now on file in the office of said Superior.Court, will more fully appear, and to which, or to a copy thereof, your orator prays leave to refer.”

This was a sufficient allegation of a return nulla bona, if any such allegation were necessary, to give the court jurisdiction to entertain the bill as a creditor’s bill. Russell v. C. T. & S. Bk., 139 Ill. 550; Huntington v. Metzger, 158 Ill. 272-83; Stirlen v. Jewett, 165 Ill. 410-15.

If it be necessary that the proof, it having been taken and being before the court, sustain this allegation and the jurisdiction of the court, as contended by appellant, we are inclined to the view that the proof is sufficient in that regard, that the sheriff did his duty, and that complainant had exhausted its legal remedy before filing the creditor’s bill. The bill, however, may be considered as one seeking to set aside a fraudulent conveyance. It alleges a fraudulent conveyance by Leslie of his property to' French and prays, among other things, that the defendants stand to, abide by, and perform such order and decree as to the court shall seem agreeable to equity and good conscience. This is in substance a prayer for general relief, and would justify the court in giving any relief which is consistent with the allegations of the bill and warranted by the proof. Lane v. Union Hational Bank, 75 Ill. App. 299, and cases there cited.

The bill being one to set aside a fraudulent conveyance, a return of the execution nulla bona was unnecessary to give the court jurisdiction, and therefore that allegation may be considered as surplusage. First Nat. Bank v. Chapman, 77 Ill. App. 105, and cases cited; Lane case, supra, and cases cited.

The court then having jurisdiction, it had the power to make the order of September 21,1897, and appellant should have obeyed the order, however erroneous it might be, and -if erroneous, which we do not hold, and the court refused on application to modify it, resorted to his right of appeal, after a final hearing to correct any supposed errors of -the chancellor. Tolman v. Jones, 114 Ill. 153; Leopold v. People, 140 Ill. 558.

In the latter case the court say: “If the court has jurisdiction of the parties and legal authority to render the order, then a party can not stand in defiance of it, however improvidently or erroneously made.”

2d. Was the punishment imposed unreasonable and excessive ? In the Leopold case, supra, the proceeding had and order made were somewhat similar to the case at bar, but the fine imposed was '$200, and defendant was ordered to stand committed until the fine was paid, unless sooner discharged by order of the court, and it was contended that the punishment should have been confined to imprisonment alone. The court said that in order to enforce .obedience, the court below “might imprison or fine the offender, or do both, as to it, under all the circumstances, seemed just, and best calculated to compel obedience. There was no abuse of that power in this case.”

In the Tolman case, supra, the punishment was by imprisonment only, the time not appearing, for a deliberate contempt of Tolman in refusing to execute an assignment of certain property in his possession to a receiver.

In Miller v. People, 10 Ill. App. 400, a fine of $250 was held to be excessive for a contempt of court, it being committed without evil motive or design.

In Berkson v. People, 51 Ill. App. 105, in which Berkson was found guilty of contempt in not having truthfully discovered his assets, books of account, etc., to a receiver, the court finding that he had not accounted for at least $7,500 in money in his possession, which he refused to turn over to the receiver, the punishment was imprisonment only.

In Parsons v. People, 51 Ill. App. 467, the appellant, was ordered imprisoned for contempt of court in'violating, an injunction, the act being done under advice of counsel, who testified that in his judgment it was.not a violation of the injunction; it was held that appellant should have been discharged instead of being committed to jail. . .

In Eapalje on Contempt, Sec. 49, it is stated, speaking of civil contempt, that “ where the act .of contempt does not appear to be at all willful or defiant, but merely the .exercise of a supposed right, under advice taken and given in good faith, it does not deserve punishment as such, but the party should .make the complainant whole as to the damages sustained thereby.” The cases cited support the statement of the author.

The case of Becker v. People, 156 Ill. 309, cited by appellees, in which a fine of $1,000 was imposed for unlawfully usurping the functions of justice of the peace, and held not to be excessive, is in no respect analogous to,-the case at bar, because, as the court said, the defendant acted wholly, without color of office, and it .was difficult to estimate the harm that might be done to individuals and the public by his assuming to perform judicial and other official acts, which must be held to be simply void.

In the case at bar appellant declined to obey the court’s order, acting under the advice of counsel, both he and his counsel presumably acting in good faith and with the honest belief that the court was without jurisdiction. This should have caused the chancellor to hesitate before entering an order imposing absolutely so large a fine in addition to imprisonment, when a smaller fine or imprisonment- alone would have just as fully maintained the dignity of the court and have quite as effectually enforced obedience to the court’s order. The evidence in the record tends quite strongly to show that appellant had been engaged in a fraudulent transaction, and therefore did not act in entire good faith in refusing to obey the court’s order,- but only for the purpose of hindering and delaying complainant in the collection of its judgment, and retaining in his control Leslie’s property. No doubt the learned chancellor must have been so impressed or he Avould not have imposed a fine larger than complainant's judgment, and also imprisonment, and required appellant to give a bond of $10,000 as a "condition of appeal from the contempt order, but Ave are of opinion that a smaller fine or imprisonment alone Avould have been quite as sufficient, not only to enforce obedience to the court’s order, but to maintain its dignity, and for that reason the order of .commitment is reversed and the cause remanded for further proceedings not inconsistent Avith this opinion. Reversed and remanded.