Shepard v. Kent Circuit Judge , 109 Mich. 606 ( 1896 )

Grant, J.

The relators obtained a judgment in the circuit court for the county of Kent against Joseph Berles. Berles v. Comstock, 104 Mich. 139. After that decision, ’ Mr. Berles refused to appear before the commissioner a,nd make disclosure, and the relators thereupon applied to the circuit court for an attachment against him for-contempt. An order to show cause was issued and served. Mr. Berles replied thereto, den ying the jurisdiction of the court to punish for contempt. This presents the sole issue in the case.

The validity of the act of the legislature under which this proceeding was instituted was sustained in Lee v. Kalamazoo Circuit Judge, 101 Mich. 406. It is alleged that this is not a proceeding pending in court, but before a circuit court commissioner, whose sole authority is derived from the statute. The power of courts to punish for contempts has been fully discussed in Re Chadwick, ante, 588. The only provision of chapter 278, 2 How. Stat., in regard to punishing witnesses or parties for disobeying the order of the commissioner, is section 8115, which reads as follows:

“If any party or witness shall disobey any order of the judge or commissioner, made in pursuance of this act, and duly served, such party or witness may be punished by the judge as for a contempt, in the same manner as the circuit court may punish for contempt.”

The power thus lodged by this section in the circuit judge is not exclusively in that officer. It is a cumulative remedy, and does not take away the jurisdiction of the courts in such case. We think the learned circuit judge was in error in holding that the circuit court had no jurisdiction. It is true that the commissioner does not proceed under the direct order of the court, but by virtue of the power conferred upon him by statute. The proceeding is supplementary to the judgment rendered in court. The power to punish for contempt is directly conferred upon the circuit judge. We think that this order, which a circuit judge is authorized to make at chambers, may also be made by the court. 2 How. Stat. § 8116. If there be no power to compel the debtor to make disclosure, then the statute is nugatory, and of no use. The circuit court commissioner is a constitutional officer, and, by section 16 of article 6, “may be vested with judicial powers not exceeding those of a judge of the circuit court at chambers.” In this matter he acted judicially, and the only method by which his jurisdiction can be sustained is by proceedings for contempt. The following authorities, we think, sustain this position: Tremain v. Richardson, 68 N. Y. 617; Wicker v. Dresser, 13 How. Prac. 331; People v. Kelly, 22 How. Prac. 309. See, also, Lathrop v. Clapp, 40 N. Y. 328 (100 Am. Dec. 493). The writ must issue.

Montgomery, Hooker, and Moore, JJ., concurred. Long, C. J., did not sit.