Buel v. Street

Yates, J. This is an appeal from an order of the 23d of January last, of the court of chancery, to attach Jesse Buel and nine other persons, for a contempt in disobeying an injunction of that court. A motion has been made to quash the petition of appeal, on the ground that it cannot be sustained on such an order. By the 8th section of- the statute, regulating the proceedings in this court, in virtue of the 32d article of the constitution, it is [447] enacted, that all persons aggrieved by any sentence, judgment, decree or order of the court of chancery, may appeal from the same to this court. It never could have been intended that all orders made in the progress of a cause in that court, should be subjects of appeal. Such a construction given to the statute, might, as has been observed by the respondents' counsel, so effectually impede the proceedings in chancery, as to render that court an engine of oppression. On the contrary, it appears to be a principle not controverted, that there is a class of orders arising in the progress of a cause from which no appeal lies, and a class susceptible of review by appeal. In the case of Newkirk and Wife against Willett, (2 Johns. Cases, 413.) the Chief Justice, who gave the opinion of this court, says, that “ such a distinction must and does existand in the case of The Trustees of Huntington v. Nicoll, (3 Johns. Rep. 586.) in the opinion delivered by another member of this court, the same construction is given to the statute. And in M'Vickar v. Wolcott, (4 Johns. Rep. 529.) that distinction is recognised. It appears to me impracticable to establish a definite rule on this subject, as every order must, in some measure, depend on its own peculiar features, to ascertain whether it will admit of an appeal. Perhaps I might undertake to say, that such only as are grounded on facts disclosed in the bill and answer, and, consequently, connected with the merits of the controversy, when final as to the subject matter of their order, so as to enable this court to decree whether the party has been aggrieved or not, may be deemed proper subjects of appeal. If this be correct, it only remains to be inquired into, whether the order now before us is pf this description. The appellants were enjoined as commissioners not to proceed in the apportionment of certain shares, nor in the election of directors. The complainants in the court below having satisfied the chancellor that the defendants were proceeding in violation of the injunction, an order was obtained for them to show cause why they should not be attached. The cause shown was deemed by the court insufficient, and an order for the attachment was made by which the parties were to be brought in to answer on interrogatories, so that the court might come to a final determination in relation to the contempt. If such final order had been made, after they were brought into court and examined, and that had been the subject of [448] appeal, it would present a different question to this court, and thé argument in justification as to the impossibility of a compliance with the injunction, and whether the court had jurisdiction of the cause, might, perhaps, be properly urged; but on ¡these subjects, according to’ my view, it is not necessary to give an opinion. . The appeal on this order, in its nature initiatory, was premature» It behoved the defendants to have submitted to answer on interrogatories, the purpose for which the attachment was to issue, and if the alleged contempt was not purged by the answers of the defendants in the court below, the opposite party having had an opportunity, according to the course of the court, to investigate the facts in relation to it, the decretal order of the chancellor would then be deemed final as to the contempt, and the appeal might, perhaps, be sustained. My opinion, therefore, is, that the appeal be quashed, with costs.