Cochran v. Ingersoll

Dykman, J. : This is a proceeding for the enforcement of a civil remedy. The respondent has been ordered by the court to pay a sum of money [370] to the receiver and has failed to comply with the order, and now an attachment is applied for to punish him for a contempt of court in not obeying, its order.' The reason assigned by the respondent for not paying the money in compliance with the order is, that he has not got it and cannot pay it. The fact of his inability to pay stands uncontradicted on the record before us, and there is no claim that he has disabled himself to pay, for the purpose of avoiding compliance with the order of the court. On the contrary, it appears that he has been insolvent for the last nine years, and has received a discharge under the insolvent laws of the State from all his debts, including the claim in question. The court is not called upon to vindicate either its dignity or its process, but simply to assist a suitor in the collection of a claim, and there is a solid and obvious distinction between contempt, strictly such, and those offenses which go by that name, but which are punished as contempt only for the purpose of enforcing some civil remedy. (Revisers’ notes.) Our statute provides that the court ordering imprisonment for contempt may in its discretion, in cases of inability to perform the requirements, relieve the person imprisoned in such manner and upon such terms as shall be deemed just and proper. (3 R. S. [6th ed.], 841, § 20.) Ample power is thus given to inquire into the circumstances after imprisonment, and there is no good reason why it should not be made before the commitment. (Doran v. Dempsey, 1 Bradford, 490.) If the attachment should issue and the respondent be committed under it, he would then, on application to the court, be released from confinement by showing the same state of facts which appears in answer to this application. Why, then, should the mere formal proceeding be gone through with? We think that the inability of the respondent to comply with the order is a sufficient reason, under all the circumstances of this case, why the attachment should not issue, and that the order appealed from should be affirmed with costs and disbursements. Present — Barnard, P. J., and Dykman, J.; .Gilbert, J., not sitting. Order denying attachment affirmed, with costs.