Witter v. Lyon

DixoN, C. J. The statute (sea 10, eh. 264, Laws of 1860; 2 Tay. Stats., 1635, § 11), among others, gives an appeal to this court from “ a final order affecting a substantial right, made in special proceedings,” and “ when an order grants, refuses, continues or modifies a provisional remedy.” In Ernst v. The Steamer Brooklyn, 24 Wis., 616, the writer, after having quoted the definitions of the statute (§§ 2, 3, eh. 122, R. S.; 2 Tay. Stats., 14Í7, §§ 2, 3), that “ an action is an — 574 — ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the prevention of a public offense,” and that “every other remedy is a special proceeding,” proceeded to remark as follows: “ It may not be easy in all cases to determine what is a special proceeding. But many proceedings will be readily recognized as such; as proceedings to attach for contempt, to obtain discovery of books, etc.; proceedings supplementary to an execution, and many others. And others, again, will be as readily recognized not to be special; and among these we think all the necessary and ordinary steps or proceedings taken in an action to conduct it to a final hearing and judgment.” It is thus seen that I was at that time, and with me also my associates, of opinion that the proceeding to punish as for a contempt was a special pro-needing. The same opinion was also expressed respecting the remedy given by statute to obtain discovery of books and papers. But in the subsequent case of Noonan v. Orton, 28 Wis., 386, where the appeal was from an order requiring the discovery of certain papers and documents, Mr. Justice ETON was of opinion, and the court is reported as so holding, that it was not an order made in a special proceeding, but an order granting a 'provisional remedy, and so was appealable on that ground. It may not be very material upon which ground appealability is held in such cases; but I am still of opinion that the remedy for a discovery is properly called a special proceeding, and so defined by the statute. I am also of the same opinion with regard to the proceeding to attach for contempt. Mr. Justice LyoN seems to consider that there can be no special proceeding which grows out of, or is connected with, a pending action. It appears otherwise to me. The statute itself seems to solve the, question, when it declares an action to be an “ ordinary ” proceeding in a court of justice; and when, therefore, Mr. Justice LyoN said of the remedy to obtain a discovery, that it was one — 575 — “ outside of and beyond those ordinary proceedings in an action,” I think he showed that it was a special proceeding, according to the statutory definition. It was not an “ ordinary,” but an “extraordinary” proceeding in a court of justice, for the enforcement or protection of a right, or the redress of a wrong, and so passed into a special proceeding, as named by the legislature, and classified in the statute. Provisional remedies, as known under the'code and spoken of in our statutes, have generally been considered as quite distinct from these special proceedings. Judge Hoffman, in the preface to his Provisional Remedies, says that the code of procedure, having divided remedies in the courts of justice into actions and special proceedings, has a subdivision under the head of actions, termed “of provisional remedies in civil actions.” Those form the subject of the seventh title of part two of the code of New York; and that title is separated into five chapters. Those chapters comprise the important subjects of Arrest AND bail ; Claim and delivery of Personal property; Injunctions; Attachments; and of Provisional remedies, embracing Receivers and some miscellaneous proceedings. In bis work he treats the foregoing as provisional remedies. Mr. Thompson’s nomenclature of provisional remedies is the very same, except the fifth, which is entitled, Receivers AND OTHER PROVISIONAL REMEDIES, to which he adds a sixth, namely, Writ op ne exeat. Thompson on Provisional Remedies, table of contents. It is well known that the legislature of Wisconsin took the code of New York as they found it on the day of its adoption, without one word added or one left out; and consequently that the foregoing works are commentaries on our code, as much as on that of New York. And it is a coincidence not a little singular, that Mr. Thompson (p. 332) “for practice.in proceedings for contempt,” refers us to Crary’s Special Proceedings. I do not care to pursue the subject further in vindication of my views that the present was a special proceeding within the — 576 — meaning of the statute. The order appealed from, being a final one affecting a substantial right in such a proceeding, I think was appealable. Counsel for the plaintiff argued at considerable length, and very forcibly, to show that the defendants, the board of railroad commissioners of Wood county, exceeded their powers and were guilty of usurpation when they entered into the agreement of January 25, 1873, with James F. Joy, and when also they adopted the resolution of. February 4, 1873, directing the bonds of the county to be deposited in the Union National Bank of Chicago in escrow, as shown by the resolution and by the receipt of W. F. Ooolbaugh, president of the bank. Counsel argue that it was a breach of trust and violation of the duties imposed by law upon the railroad commissioners, not to have placed the bonds in the office of the treasurer of the state, as provided in the agreement entered into with the railroad company and in the submission to the vote of the qualified electors of the county. They argue that it was a further ■usurpation and wrong to cause or to suffer the bonds to be taken out of the state, so as to be beyond the jurisdiction of its courts or the reach of process in the bands of the proper executive officers. But all these things were done before this action was commenced, and before the injunction was issued, for disobedience of which this proceeding to punish as for a contempt was instituted. The defendants answer that the bonds were gone before any process was served upon them in the action, and that it was impossible for them to regain possession or control of the bonds so as to comply with the mandate of the injunction by depositing them with the state treasurer. ■ It is not a position assumed by counsel, that -the defendants are in contempt for what' they'did prior to the service of process upon them, or that they are liable to punishment therefor, provided it be shown that the bonds were in fact beyond their reach and control at the time the injunction was served, and so 'remained up to the time of the hearing of the order to- show — 577 — cause why they should not be punished for the alleged disch bedience. It is certainly very unusual that parties should be adjudged in contempt for any act or omission occurring prior to the commencement of suit’ or the service of process; and yet it has sometimes been done. The People v. Salomon, 54 Ill., 39, is an instance of the kind. But the facts of that case were peculiar ; one of which was, that the defendant had had the opportunity of showing that the misconduct complained of took, place before the action was instituted, but had contemptuously' refused or neglected to avail himself of it. The court evidently considered it trifling with the process of the law and the time and attention of the court, for the defendant to come in' afterwards and seek to excuse himself upon a ground which he had so previously ignored. We think counsel for the plaintiff •' are correct in not assuming, or more properly, perhaps, in not insisting, that these defendants are punishable in this proceeding for acts done by them before the action was commenced. The object of the argument appears to be, to show that the: circuit court was wrong in its practice in discharging the order • to show cause upon the ex parte affidavits produced by the defendants, instead of causing or permitting interrogatories to be) filed by the plaintiff, and requiring specific answers to be made • to them by the defendants on oath, as the statute provides maybe done.- It is insisted that the course pursued was unauthorized and irregular, and that in’place of the ecu parte showing; made -by them, the plaintiff was entitled’ to search the. consciences of the defendants,’ and to explore and ascertain -the. facts more completely and thoroughly by means, of written interrogatories propounded to the defendants, and their answers under oath in direct and categorical response thereto. The practice thus contended for would clearly have been proper on return of the order to show cause and the appearance of the defendants, as was held by this court in Poertner v. Russel, 33 Wis., 193. But although such practice would have been proper, had — 578 — the circuit court seen fit to adopt it, yet the course pursued hy the court was likewise regular and proper. It is the well settled judicial construction of the same statute in New York, whence our own was borrowed, that where an order to show cause is granted, the course to be pursued may conform to the general practice of the court on orders to show cause why relief should not be granted. The order, being granted on ex parte affidavits and proofs, may be discharged on evidence of the same kind produced by the party against whom it was obtained. “If,” says the chancellor, in Albany City Bank v. Schermerhorn, 9 Paige, 372, 375, “the alleged misconduct is denied, the court may discharge the order to show cause; or may allow interrogatories to be filed, and refer it to a master to take the answers of the accused to such interrogatories, and to take such proof as either party may wish to offer, and report the same to the court.” And in Watson v. Fitzsimmons, 5 Duer, 629, one of the points expressly decided was, that, when the incipient proceeding to punish a party as for a contempt is an order to show cause “ why he should not be punished for the alleged misconduct,” and the misconduct is denied, it is not essential to the validity of any final order that may be made, that interrogatories should be filed. Taking the statute with the construction it had thus received, we must hold that the course here pursued was not irregular; and, the affidavits produced by the defendants establishing prima facie that they were not guilty of the contempt charged, we must also affirm the order of the court discharging the order to show cause. By the Court.— Order affirmed.