People ex rel. Larocque v. Murphy

By the Court.

Daly, F. J.

When the misconduct is not committed in the presence of the Court, the statute requires due proof by affidavit of the facts charged. This is requisite to give the Court jurisdiction to act in the matter .of a contempt alleged to have been committed out of its presence ; and without this, a court has no authority to order a party to he arrested and brought before it, and to adjudge upon the matter of the alleged contempt. This was .the law before, the Revised Statutes were passed, and upon a principle as old as the reign of Edward III., that no man could be deprived of his liberty except upon due process of law, it was doubted in Worth v. Wiggins (Strange R., 1068) whether the Court of King's Bench had authority to order a man in the first instance to be arrested and brought before it to answer for a contempt, unless upon two affidavits ; and in Anon. (3 Atk., 319), Lord Hardwicks refused to do so ; and as there was but one affidavit to prove that the contempt had been committed, .he simply made an order that the offender show cause.

It was presumptively shown upon this motion, that the affidavits upon which Judge Brady ordered the attachment to be issued were made before a person who had no authority to take the deposition, and the evidence offered to show this was not controverted or disproved upon this motion. The attachment was therefore issued without due proof by affidavit, and was, together with the commitment' founded upon it, entirely without authority. It may he said that sufficient appeared in the defendant’s answers to the interrogatories, without resorting to the affidavits upon which the attachment was issued, to show that he had been guilty of a contempt. I doubt if his answers to the interrogatories make out a case of intentional disobedience to the order of the Court; or if they do, I doubt if that would help the matter. It is sufficient to say that he was arrested, brought before the Court, and compelled to answer interrogatories without any authority in law, and as the subsequent commitment necessarily relates back to, and includes, the facts and allegations which constituted the ground for his arrest in the first instance, the one cannot be severed from the other. The proceeding, in its inception, was void for the want of jurisdiction (Demming v. Corwin, 11 Wend., 641), and as the commitment was founded upon the. proceeding, it was equally void.

The defect of the want of jurisdiction was available either before or after the commitment (Borden v. Fitch, 15 Johns., 141), and the remedy which the defendant resorted to was a proper one (People v. Nevins, 1 Hill, 159). If he had appealed from the order committing him to the General Term, his appeal would have been dismissed, for no appeal lies upon a commitment for a contempt, unless there was a want of jurisdiction (Mitchell's Case, 12 Abbott, 249), and that would not have appeared upon a review of the proceedings before Judge Hn/roy. He had no remedy by habeas corpus, for the warrant of commitment was regular upon its face, as it was in a matter of which the Court had general jurisdiction, and an officer upon habeas corpus cmld not'go beyond" that, but would be bound to presume, the Court being a court of record, that it had acquired jurisdiction of the defendant’s person (The People v. Nevins, 1 Hill, 154; Foot v. Stevens, 17 Wend.,. 483 ; Van Alstyn v. Erwin, 1 Kern., 331; Skinnion v. Kelly, 18 N. Y., 356). The proper remedy, then, the commitment being void, or rather voidable, was to move the Court, by which it was granted upon affidavits disclosing the facts which showed aliunde that the whole proceeding was void, for an order vacating it and discharging the defendant (The People v. Nevins, 1 Hill, 159).

If the fact disclosed upon this motion had been presented to Judge Hilton, he would have been bound to dismiss the proceeding. Very possibly it was not known while the proceedings were pending before him, but it was available at any time, and the proper way to bring it to the knowledge of the Court was by a motion to vacate the order of commitment and all the proceedings npon which it was founded.

The order of Judge Cabdozo should therefore be .affirmed.