Duell v. Duell , 178 F.2d 683 ( 1949 )

WILBUR K. MILLER, Circuit Judge.

Charles H. Duell, Jr., appeals from a judgment of the United States District Court for the District of Columbia which, because he had been held in contempt of that court, struck his answer from the record and awarded judgment against him for $794,762.50, as though he were in default. The action was taken in a suit brought by his former wife in 1942 for sums alleged td be due under the terms of a separate maintenance contract which had been executed in 1923. The agreement was that he should pay her $1,500 per month for life and, in addition, $50,000 in ten equal monthly instalments; provided, however, if his worth and income were, respectively, less than three times the lump sum and the monthly payments, those payments should be reduced accordingly.

Among a number of defenses, his answer pleaded that he had not enjoyed sufficient income to require him to make further payments under the contract. The case was referred to the court’s auditor to determine the appellant’s worth and annual income.

On June 9, 1943, Duell appeared before the auditor, without counsel, and submitted to examination. He was questioned concerning his income year by year from 1924 to 1943. During that period, he said, his income had not been large enough to require him to file federal income tax returns except in the years 1936, 1941 and 1942, and submitted to the auditor copies of his federal returns for the last two of the three years for which returns had been made. He was ordered to file copies of all income tax returns, a “breakdown” of his expenditures for 1941 and 1942, and the books and records of the Brisbane Box Corporation, of which he was president. After a number of continuances, the hearing was reconvened on February 27, 1945. Duell did not attend .but his counsel explained his absence and filed a copy of his income tax return for 1936. There was filed a letter from the Brisbane company’s accountants advising that from its organization in 1935 to June 30, 1942, the corporation had claimed deductions for compensation paid to Duell only for the last two fiscal years in the period mentioned. There was also presented a letter from the secretary of the corporation declining to permit Duell to borrow its books and records and pointing out that since September, 1943, he had had no connection with the company.

Pursuant to the appellee’s motion, on November 9, 1945, the court

“ * * * Ordered, that the defendant, Charles H. Duell, Jr., personally appear on a day or days to be fixed by the Auditor to be further examined * * * and the defendant is further

“Ordered, to submit to the Auditor whatever records, documents or other data deemed necessary by the Auditor *• *

The parties agreed upon February 20, 1946, as the date of the hearing. Duell did not attend but his counsel was present and attempted to explain his absence. The auditor thereupon reported to the court that “Since the order of reference could not be executed without taking the testimony of the defendant”, he had closed the hearing. Mrs. Duell then moved that the appellant be held in contempt and pursuant to that motion, and on March 27, 1946, the District Court adjudged that Duell was in •contempt and committed him to jail for thirty days. He has not been apprehended because of his absence from the District •of Columbia.

On June 14, 1947, Duell’s counsel took his deposition in New York, at which taking appellee’s counsel cross-examined. When the case came on for hearing on the merits on June 16, 1947, the trial judge said:

“On March 27, 1946, this court adjudicated the defendant in contempt for failing to obey the order of this court dated November 9, 1945. The defendant has not purged himself of that contempt, and he is still in contempt. The case has come on for trial.

“Under the circumstances, the Court will strike from the record his answer, and the case will be proceeded with as a case of default.”

So the appellant’s answer was stricken and the appellee was awarded judgment against him for $794,762.50, together with •costs.

The appellant contends the contempt order was void on its face and says the District Court erred in striking his answer and entering judgment as though by default. The appellee agrees that “The fundamental issue involved * * * is whether * * the District Court * * * erred in striking the appellant’s answer from the record and in proceeding with the case as in a case of default.”

If the contempt order was invalid, then, for that reason if for no other, it was error to strike the answer and to enter a default judgment. Our consideration of the order’s validity is facilitated by the agreement of the parties¹ that the proceeding here was for civil contempt.

A commitment for civil contempt is intended, not to punish, but to coerce the defendant. Since he can discharge himself by doing what he had previously refused to do, it is said he carries the key to his prison in his own pocket.² On the other hand, a sentence for criminal contempt is not intended to coerce. It is pure punishment to vindicate the court’s authority and dignity, and it cannot be ended or shortened by any act of the defendant.

We agree with the parties that the contempt proceeding in this case was civil in character, for it was not “ * * * a proceeding with the court, or, more properly the Government, on one side and the defendants on the other. On the contrary, the contempt proceedings were instituted, entitled, tried, and up to the moment of sentence treated as a part of the original cause * * ³ .

Since “ * * * imprisonment for civil contempt is ordered where the defendant has refused to do an affirmative act required by the provisions of an order which, either in form or substance, was mandatory in its character”, it has been authoritatively said that “The decree in such cases is that the defendant stand committed unless and until he performs the affirmative act required by the court’s order.” It necessarily follows that, if the order of commitment furnishes the defendant no key and “If * * * the sentence was wholly punitive, it could have been properly imposed only in a proceeding instituted and tried as for criminal contempt.” ⁴

The appellant contends, as we have said, that the order of which he complains is an unqualified commitment to jail for thirty days and provides no way by which he may unlock the door of his prison by doing the thing which he had been ordered to do. Whether this contention is sound depends, of course, upon the meaning of the order of commitment, which we reproduce:

“This matter having come on for hearing upon the motion filed herein on March 11, 1946, to adjudicate defendant in contempt, it is by the Court this 27th day of March, 1946

“Adjudged and ordered that the'defendant, Charles H. Duell Jr., is in contempt of the Court because of his failure to have obeyed the order of November 9, 1945, in the above-entitled cause, and that the United States Marshal in and for the District of Columbia is hereby directed to take into his custody the person of the defendant, Charles H. Duell, Jr., and commit him to the Washington Asylum and Jail for a period of Thirty days or until such earlier time as he shall purge himself of his contempt by paying to the plaintiff or her attorney of record the sum of......or until further order of the Court hereon.”

Consideration of this order is somewhat easier when it is understood that it was prepared by filling in the blanks of a printed form of commitment for contempt which is in general use in the District Court in cases where husbands have failed to pay alimony awarded by the court. Being designed for such use in civil contempt proceedings, the form appropriately hands to the defendant the key to his prison which he may use when he pays to his wife or her attorney the designated sum. The form was not appropriate for use in this case, however, as the appellant could not have purged himself of contempt by paying a sum of money, but only by appearing before the auditor and submitting the required data. Yet the form was used, and the blank space in it for the insertion of a definite sum to be paid by way of purging was not filled. The result is the order committed Duell for thirty days or “until such earlier time as he shall purge himself of such contempt” by paying nothing to the plaintiff or her attorney. The attempted qualification is quite meaningless and the words which follow the committing language do not condition the absolute, unqualified sentence of thirty days. The same is true of the closing words of the printed form, “or until further order of the Court hereon”, for those words show that the court, not the defendant, was carrying the key. It is generally said that in civil contempt proceedings “ * * * compliance with the order avoids the punishment”,⁵ and not at all that compliance with the order may move the court to enter a further order vacating the commitment.

The record shows the unconditional nature of Duell’s sentence to have been recognized by the appellee and by the court itself. Duell petitioned the court to modify the order by including in it language which would permit him to free himself from the sentence by appearing in person before the auditor. His petition was vigorously opposed by the appellee and, as it was not granted, it was in effect denied by the court. Indeed, the District Court clearly indicated that the order was absolute and furnished Duell no key, and that the court alone carried the key, for it announced that no such petition would be entertained “ * * * unless and until the defendant personally appeared in open court with an explanation at which time a hearing would be afforded him”.

While we do not condone the conduct of the appellant, it seems clear to us that the court imposed a sentence which was wholly punitive and we therefore hold, in the language of the Supreme Court, “ * * * if could have been properly imposed only in a proceeding instituted and tried as for criminal contempt.” ⁶ As was said in the Gompers case, 221 U.S. at page 449, 31 S.Ct. at page 501, “The result was as fundamentally erroneous as if in an action of ‘A. vs. B. for assault and battery,’ the judgment entered had been that the defendant be confined in prison for twelve months.” It follows that it was error to strike the appellant’s answer and to render judgment against him as though by default

The court’s action in striking the answer and rendering a default judgment was erroneous for the further reason that civil contempt may not be punished in that fashion unless it grows out of a defendant’s failure to produce, when ordered to do so, material evidence in his possession or under his control. In Hovey v. Elliott, 1897, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215, in a careful and exhaustively analytical opinion, the Supreme Court held that to punish for contempt by striking an answer from the files and rendering judgment as by default is an unconstitutional denial of due process of law.

This case is, in our view, readily distinguishable from Hammond Packing Company v. State of Arkansas, 1909, 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530, 15 Ann.Cas. 645, upon which the appellee relies heavily as embracing facts similar to those of the present case and as, therefore, controlling here. The Hovey case holds it is a denial of due process to strip a defendant of his defenses as punishment for contempt. The Hammond opinion does not modify that rule; its holding is that, when a defendant has suppressed or failed to produce relevant evidence in his possession which he has been ordered to produce, a presumption arises as to the bad faith and untruth of his answer which justifies striking. it from the record and rendering judgment as though by default.

In the case before us it does not appear that Duell suppressed or failed to produce material evidence in his possession which the auditor had ordered him to produce. In fact the record does not reveal what documents, data or information the auditor “deemed necessary” under the order of November 9, 1945. To be sure, in 1943 the then auditor wanted copies of income tax returns, the books and records of the Brisbane Box Corporation, and a “breakdown” of Duell’s expenditures for 1941 and 1942. Perhaps it may be inferred that his successor wanted the same in formation at the hearing held pursuant to the order of November 9, 1945. That was the order which Duell was held to have disobeyed. Under the Hammond case, however, his answer could be stricken only if it appeared that he had the required evidence, in his possession or under his control. But the copies of his income tax returns were furnished, and there was -uncontradicted proof that the books and records of the Brisbane Box Corporation were neither in his possession nor under his control. Nor does it appear affirmatively in the record that Duell had any other material matter which was not submitted to the auditor. This being true, the Hammond case has no application here and the basic rule of the Hovey case comes into play..

The appellee’s final contention is that the adjudication of contempt entered on March 27, 1946, was a final order from which an appeal could be taken only within three months after its date. This appeal was not taken within that period, but was seasonably filed after the entry of the default judgment. It is thoroughly settled that an order punishing for civil contempt is interlocutory and reviewable upon appeal taken from the subsequent final judgment; and that in criminal contempt the order of punishment is itself considered a final order, appealable as is any other criminal case. McCrone v. United States, 1939, 307 U.S. 61, 50 S.Ct. 685, 83 L.Ed. 1108; Fox v. Capital Company, 1936,. 299 U.S. 105, 57 S.Ct. 57, 81 L.Ed. 67; In re Merchants’ Stock and Grain Company, 1912, 223 U.S. 639, 32 S.Ct. 339, 56 L.Ed. 584; Doyle v. London Guarantee and Accident Company, Ltd., 1907, 204 U.S. 599, 27 S.Ct. 313, 51 L.Ed. 641.

The contempt order here involved was, as the parties agree, entered pursuant to civil contempt proceedings. The importance of that fact is shown by the following language used by the Supreme Court in the Gompers case, 221 U.S. at page 448, 31 S.Ct. at page 500:

“ * * * both parties treated this as á proceeding which was a part of the original equity cause. In case of doubt this might, of itself, justify a determination of the question in accordance with the mutual understanding of the parties, and the procedure adopted by them.”

Measured by all the standards in the carefully prepared Gompers opinion, the proceeding in the present case was civil, not criminal, in character. It was entitled, instituted and conducted as collateral to civil litigation. It may be'noted, moreover, that in addition to the tests of the Gompers opinion which 'unequivocally show this to have been a civil proceeding, the procedure which led to Duell’s. sentence completely failed to satisfy the requirements of Rule 42(b) of the Federal Rules of Criminal Procedure,⁷ which must be followed in the prosecution of any criminal contempt unless, as provided in paragraph (a) of the Rule, “the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court.” The trial judge here neither saw nor heard Duell’s conduct which was held to constitute contempt and it did not occur in the actual presence of the court.

In the Gompers case, pursuant to the petition of Bucks Stove & Range Company filed in a pending civil suit, the court found Gompers and others guilty of contempt for disobeying an injunction and entered an order of commitment which was unqualified and 'Contained no provision for the release of the prisoners should they purge themselves of contempt. The order was therefore criminal in form, just as is the order in the case before us. The appeal in the Gompers case, however, was from a final judgment on the merits, and the Supreme Court reviewed the contempt .order and directed that it be set aside. The only factual difference between the Gompers case and this case is that Gompers and his associates were held in contempt for the affirmative act of doing what the court had forbidden them to do, while here Duell was held in contempt for not doing what the court had ordered him to do. The difference is not a distinguishing one, but serves to emphasize the fact that in this proceeding the only proper order would have been coercive in form.

The recent case of Penfield Company v. Securities and Exchange Commission, 1947, 330 U.S. 585, 67 S.Ct. 918, 91 L.Ed. 1117, follows the Gompers decision. That case was before the Ninth Circuit sub nom. Securities and Exchange Commission v. Penfield Company, 1946, 157 F.2d 65, 66. The Securities and Exchange Commission applied to the district court for an order enforcing its subpoena duces tecum addressed to one Young, an officer of Penfield, requiring him to produce certain books of the corporation. After a hearing the court ordered Young to produce the books. When he persisted in non-compliance, the Commission applied to the district court for a rule to show cause why he should not be adjudged in contempt. After a hearing the court adjudged Young to be in contempt but refused to grant any coercive relief and simply imposed on him a flat unconditional fine of $50.00, which he paid.

In the early, portion of its opinion, the Court of Appeals for the Ninth Circuit said, “Young did not appeal from the order holding him in contempt. That decisión is final and the only question before us is the extent of the remedy to which the Commission is entitled.” But it concluded its opinion by saying:

“The order imposing the fine is reversed and the case remanded to the district court for an order requiring Young’s imprisonment to compel his obedience to the order to produce the documents : in question. ‘If he complies, or shows that compliance is impossible, he must be released, for bis confinement is not as punishment for an offense of a public nature.’ Barker v. United States, 1 Cir., 153 F.2d 66, 70 [163 A.L.R. 379].”

When the ■ case reached the Supreme Court, that Court stated one of the questions as follows: “ * * * whether that court [Circuit Court of Appeals] exceeded its authority in reversing the judgment which imposed the fine and in substituting a term of imprisonment conditioned on continuance of the contempt.” ⁸ In the course of the opinion, the Supreme Court observed, “When the Circuit Court of Appeals substituted imprisonment for the fine, it put a civil remedy in the place of a criminal punishment”,⁹ and closed by saying:

“There is a difference of view among us whether the portion of the cfrder of the Circuit Court of Appeals which set aside the unconditional fine of $50 imposed on Young is here for review. But if we assume that it is, a majority of the Court is of the opinion that the Circuit Court of Appeals was correct in setting it aside, since the fine was imposed in a civil contempt proceeding. See Gompers v. Bucks Stove & Range Co., supra.”¹⁰

It is our view, therefore, that the erroneous framing of the order in this case as though for criminal contempt rendered it invalid as a commitment for civil contempt but did not thereby transform it into a criminal order for the purposes of appeal. We base that opinion on what we regard as the clear holdings of the Gompers and Benfield cases.

The judgment of the District Court will be set aside, as will its order striking the appellant’s answer from the record, and the cause will be remanded with instructions to vacate the contempt order or to recast it in a form appropriate in a civil contempt proceeding.

Reversed.

1 “It cannot be questioned that the proceeding in the instant case was for a civil contempt.” — -Appellant’s brief.

“ * * * The order which was promulgated by the Court pursuant to these civil contempt proceedings was also wholly civil in character.” — Appellee's brief.

2 In re Nevitt, 8 Cir., 1902, 117 F. 448, 461.

3 Gompers v. Bucks Stove & Range Co., 1911, 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797, 34 L.R.A.,N.S., 874, in which the Supreme Court also said, at pages 444 and 445, 31 S.Ct. at page 499: “ * * * Proceedings for civil contempt are between the original parties and are instituted and tried as a part of the main cause. But on the other hand, proceedings at law for criminal contempt are between the public and the defendant, and are not a part of the original caüse.”

4 The quotations in this paragraph are from Gompers v. Bucks Stove & Range Co., supra.

5 Doyle v. London Guarantee and Accident Co., Ltd., 1907, 204 U.S. 598, 607, 27 S.Ct. 313, 315, 51 L.Ed. 641.

6 Gompers v. Bucks Stove & Range Co., 221 U.S. at page 444, 31 S.Ct. at page 499.

7 18 U.S.C.A.

8 330 U.S. at page 591, 67 S.Ct. at page 922.

9 330 U.S. at page 592, 67 S.Ct. at page 922.

10 330 U.S. at page 595, 67 S.Ct. at page 923.