Perkins v. Taylor

Robertson, J. It does not appear that the referee is a party to the present motion ; if he were, it could hardly be maintained that he could apply for process of contempt against the plaintiff to compel him to pay his fees. His protection lay in re [149] fusing a reference, if the parties or their attorneys were not able to pay them, or in enforcing payment by action if they were. It is also very doubtful how far he has a right to split up an order of reference to him into several subjects, and report separately upon each, without an express direction to that effect contained therein, so as upon one branch of it to bring one party in debt and enable the other party to proceed against him for the costs of the reference. The general rule is that the prevailing party upon a reference must pay the referee’s fees, and recover it back from the other by proper proceedings, and that no process as for a contempt shall issue, where an execution can be used to enforce the payment of money. This, therefore, is an attempt to subject the plaintiff to imprisonment as an officer of the court for moneys for which he is only liable as a private individual. If, however, such order has been originally obtained on due notice, although the matters now suggested on behalf of the plaintiff might have formed good grounds for resisting it—such as the want of enough money in his hands as receiver due to the defendant Taylor to pay such referee’s fees—yet the propriety of making it cannot now be inquired into. Prima facie, the affidavits on which the order was granted showed he had a large sum for which he was accountable, which was not contradicted. Nor is it very clear how far I can go behind that order, without a motion to vacate it for irregularity, to ascertain if it was made on due notice**of motion, and proper adjournments. An order purporting to have been made without hearing the party to be affected thereby, or some proof of an opportunity having been afforded for the purpose, does not show on its face jurisdiction over such party as an officer of the court, so as to found proceedings thereon for a contempt in disobeying it; and the moving papers in this case do not supply the defect. If regular adjournments were necessary to enable one justice to decide a motion argued before another, and postponed for further hearing (in case he could do so at all), the supposed stipulations to adjourn, and even admissions of service, are not authenticated by any proof, and can hardly be adjudged to be so now by mere inspection. If the original order had recited the fact of such adjourn150 meats and service of notice, this court would not on this motion be entitled to go behind it. As it is, I think there is a failure of proof of jurisdiction to sustain the order, which is not a pro- ■ ceeding in the action, but a collateral one against a receiver or officer of the court merely; although he happens to be the plaintiff, and the defendant is interested in enforcing it. The defendant, who now moves, stands in no better condition than the referee to whom the money is directed to be paid, and derives no additional right from the fact of being a defendant. Process for contempt ought not to issue for non-compliance with an order so loosely obtained, against all the equities of the party sought to be charged, upon proceedings out of the ordinary course, in order to subject a party thereto, instead of to a mere execution. The plaintiff also utterly denies his ability to perform the order, which is a sufficient excuse for its non-performance. (Meyers a. Trimble, 3 E. D. Smith, 607 ; S. C., 1 Abbotts’ Pr., 220, 399.) It would be hard and oppressive to imprison him for a neglect which he could not avoid. The motion must therefore be denied without costs, without prejudice to its renewal on the acquisition by the plaintiff of sufficient means to perform the order, or to any application to set the same aside.