Berkson v. People

Bailey, J.: This was a proceeding against Jacob Berkson for contempt, for failing to obey an order of the circuit court of Cook county, sitting as a court of chancery. It appears that on the 22d day of September, 1891, Aaron Feltenstein, having obtained a judgment at law against the respondent and execution thereon having been returned unsatisfied, filed his creditor’s bill against the respondent and others, seeking to reach equitable assets and to subject them to the payment of the judgment. Such proceedings were thereupon had in the matter of the creditor’s bill that a receiver was appointed, and the respondent ordered to appear before one of the masters in chancery of the circuit court, and assign, transfer and deliver to the receiver, on oath, under the direction of the master, his property, real and personal, things in action, equitable interests and other effects not exempt from execution, and to deliver to the receiver all bills, notes, contracts, books of account, vouchers, etc., relating to his property or business, and to appear before the master and submit to an examination, as the master should direct, in relation to his business and property and the situation and disposition thereof. The respondent appeared before the master and was examined at very considerable length, and at the close of the examination the master reported, among other things, that the respondent had in his hands at least $7500 of money derived from the sale of his goods, for which he failed to account, and that he had not truly divulged to the receiver his assets and property in his possession or under his control, and had willfully concealed the same, and had contumaciously refused to testify, and divulge the whereabouts of his assets and property. On the coming in of the master’s report, Feltenstein entered his motion for the commitment of the respondent for his failure to obey the order of the court, and the motion for commitment coming on to be heard, the court found that the respondent, in violation of the order and direction of the court, had not truly divulged to the receiver his assets and property in his possession and under his control, but bad willfully concealed the same, and contumaciously refuses to truly divulge the whereabouts thereof, in violation and disobedience of the order of the court. The court further found, among other things, that the respondent had, with intent to defraud his creditors, disposed of a large stock of goods to different parties, and that at the time the bill was filed he had, and still has, in his possession or under his control at least §7500 in money realized from the stock of goods, which he refused and still refuses to account for or turn over to the receiver, and that he absolutely refuses to honestly and truthfully testify and submit to an examination concerning his property and the disposition he has made of it. He was thereupon adjudged and decreed to be in contempt, and was ordered to stand committed to the common jail of the county to answer for his contempt, and that he remain in custody until he comply with the order of the court, and, among other things, fully and truly submit to an examination, and testify and discover to the receiver, before the master, concerning his assets and property in his possession or under his control, and. account for and,turn over to the receiver the §7500 so found to be in his possession and under his control. This order was taken by the respondent to the Appellate Court by writ of error, and, was there affirmed, and the present appeal is from the judgment of affirmance. The point is made on behalf of the appellant that it does not appear that he was present before the court in person at the time the order adjudging him guilty of contempt and ordering his committal to the common jail therefor was entered, and that the court had no jurisdiction to enter such order. It is recited in the order that the cause having come on to be heard, upon the motion of Feltenstein, for an order for attachment and commitment of the respondent for his failure to obey the orders of the court in the cause, and upon the report of the master, together with the testimony taken by him, and his findings and conclusions thereon filed in the cause, “and also came Jacob Berkson, having due notice of said motion and application by his counsel,” and the court having heard the evidence adduced and the report of the master, and the exceptions filed thereto, found the respondent guilty of contempt as charged, and ordered his committal, etc. It can not be denied that the recital as to the appearance of the respondent is ambiguous. The ambiguity grows out of the somewhat unusual place given to the phrase, “by his counsel.” It is contended that the recital, when properly construed, merely shows that the appearance of the respondent was by counsel and not in person, and that the court therefore was without jurisdiction. Without pausing to determine whether an appearance by counsel would have been sufficient to' give the court jurisdiction to enter an order adjudging the respondent guilty of contempt and committing him to jail therefor, we are of the opinion that the most natural and obvious meaning of the recital is, that the respondent appeared/ — that is, appeared in person, — after having received notice of the motion and application by, that is, through the instrumentality of, his counsel. In the above quotation of the language of the recital we have followed the punctuation as it appears in the record, and when that is observed, in connection with the form of the recital, we think it most in accordance with the grammatical construction of the language to understand the phrase “by his counsel,” as qualifying the statement as to the mode in which notice of the motion was given, and not the mode in which the respondent appeared in answer thereto. It is contended by counsel for the prosecution, that as no appeal or writ of error was prosecuted from the original order requiring the respondent to appear before the master and submit to an examination in relation to his property and assets and to turn his property over to the receiver, the only question now before the court is. that of jurisdiction, and that the propriety of the order of commitment, or the correctness of the findings of fact upon which that order was based, can not be raised in this proceeding. In that view we are unable to concur. The propriety of the original order may be conceded, and yet errors may have intervened in its execution, and in the supplementary proceedings which have resulted in the conviction of the respondent for contempt and in his commitment to jail, which may properly be reviewed on this appeal, and, as we understand it, only errors of that character are now assigned. We are of the opinion that the evidence heard upon the motion to commit the respondent for contempt was sufficient to justify the order as made. The testimony taken before the master and all the proceedings had before him were presented and read on the hearing of the motion, and we think the proper conclusion from all the evidence is, that the respondent has in his possession or under his control a large sum of money, the proceeds of a stock of goods disposed of by him to different parties, and that he contumaciously refuses to honestly, fairly and truthfully testify in relation to such proceeds and as to what he has done with them, and to turn the same over to the receiver. A discussion of the evidence in detail will serve no useful purpose, but no one can read it without being impressed with the belief that the respondent, by various evasions, or by claiming not to remember, is endeavoring to conceal and withhold from the receiver an amount of money more than sufficient to satisfy the complainant’s judgment, realized by him from the sale of his goods. We think he was properly adjudged guilty of contempt, and the judgment of the Appellate Court affirming the judgment committing him therefor will be affirmed. Judgment affirmed.