
    Butler v. The People.
    Contempt of court — abuse of process. To sue out an attachment for a witness in a civil cause who has not been regularly served with subpoena, is a contempt of coui-t in the attorney applying therefor.
    Writ OF error — in case of contempt. Whether a writ of error lies to a judgment for contempt, the court was not agreed, but as no error was found in the record, the writ was dismissed.
    
      Error to District Court, Gilpin County.
    
    The record showed that on the 9th day of August, 1867, in the district court of Grilpin county, the civil cause, Snyder v. Grimes, was called for trial. Thereupon, Mr. Butler, an attorney of the court and of the plaintiff, Snyder, suggested to the court that a subpoena had been issued for Martin Johnson et al., which had been served, and moved the court for a writ of attachment against said witnesses as for a con-, tempt of court in not obeying the said subpoena, which writ was accordingly issued.
    The other material portions of the record are set forth in the opinion of Mr. Justice Beleord.
    The chief-justice did not participate in the decision.
    
      Mr. Hugh Butler, plaintiff in error, in person.
    Mr. E. Wakely, contra.
    
   Beleord, J.

The plain tiff in error was fined in the court below for an alleged contempt in causing a writ of attachment to be sued out for an absent witness. It appears that the witness was subpoenaed to be in attendance on the 9th day of August. On that day the cause coming on to be heard, and the witness not appearing, the record recites that Mr. Butler moved for an attachment for the body of said witness, which was accordingly issued. The record further recites that “ afterward and upon the same day it appears to the court that the said writ of attachment was improperly issued, for that the subpoena aforesaid is made returnable upon the 9th day of August, and it further appearing to the court that the said subpoena, and the time at which the same is made returnable, was filled in and written by the said Butler, it is considered and adjudged by the court that the said Butler, in causing the said writ of attachment to be issued improperly and wrongfully as aforesaid, is guilty of a contempt of this court, and it is ordered and adjudged by the court that the said Butler pay to the clerk of this court a fine of $2.50, and until he purge himself of such contempt by paying such fine, he shall not be permitted to appear in this court as an attorney,” etc.

The attachment was evidently sued out on the theory that it was the duty of the witness to be in attendance on court at the opening of the same on the morning of the 9th. The offense is rather technical than intentional or real. To sue out process when one is not entitled to it has been held by able courts to be a contempt. Every counsel, in asking for an attachment, pledges his personal and professional honor to the court that the papers which are on file are sufficient to entitle him to the order. Brown v. Keller, 40 Ill. 81.

We are of the opinion that the witness had all of the day to which the subpoena was made returnable to appear, and that no attachment could properly issue. Ho hour was fixed in the subpoena. The witness was simply required to be at court on that day. The chief question for our determination is, will a writ of error lie in a case of contempt in the face of a court of justice? In Illinois the question has been resolved in the affirmative. Winkelman v. The People, 50 Ill. 449. A different answer has been given by a higher court, and one which I am obliged to accept. In Ex parte Bradley, 7 Wall. 376, Mr. Justice Nelson says: “ The order disbarring attorneys or subjecting them to fine or imprisonment is not reviewable by writ of error, it not being a judgment in the sense of the law for which this writ will lie.”

The doctrine announced in this case is reaffirmed in Ex parte Robinson, Chicago Legal News, Jan. 24, 1874. See also Ex parte Martin, 5 Yerger, 457.

It may be asked is an attorney, when disbarred or imprisoned, without remedy? If an individual was unlawfully imprisoned by any court of justice, relief could be afforded by the constitutional writ of habeas corpus, but against a sentence imposing a fine, I know of no relief. If disbarred, the writ of mandamus may be invoked. In the view 1 take, this writ of error must be dismissed.

Wells, J.

If the writ of error lies here, the judgment must be affirmed. The witness whom Mr. Butler caused to be attached in the district court was clearly entitled to the whole of the day named in the subpoena in which to make his appearance; to take out an attachment against him in the meantime was to occasion an abuse of the process of the court, which, though inadvertently done, was a contempt; for such slips and omissions of counsel tend to bring disgrace upon the courts themselves, as not taking due care to prevent them. Bac. Abr., Attachment, A; Com. Dig., Attorney, B; 13 Hawkins’ P. C., b. 2, c. 22, s. 2.

As to so much of the sentence as suspended Mr. Butler from practice until payment of a fine imposed, I do not appreciate what was said in argument against the existence of the power thereby assumed. If the courts may not in such cases as this record presents suspend the attorney, they are equally powerless where the contempt is of such an aggravated and scandalous character as to render it unseemly that the offender should be received within the bar. And if the inferior courts may not directly exercise the power of suspension, they may not reach the same end indirectly. And this will take away the power of imprisonment; for to imprison the attorney is practically to suspend him during the period of the detention, and this will give to those of the profession and, as I should think, all those who exercise any office whatever, a practical immunity to contemn the inferior courts. As to Winkleman’s case (50 Ill. 450) which is relied upon by the plaintiff in error, it is to be observed that the order complained of here goes no further than to suspend Mr. Butler from practice until he should, pay the trifling fine imposed; whereas in the case referred to, the suspension was perpetual. In that case, too, the order extended itself to all the courts of the circuit, in which respect, inasmuch as the attorney was not admitted in that court, the order was too extensive. Stephens v. Hill, 10 M. & W. 33. Here the suspension was only in the particular court wherein the contempt was committed, and for the exercise of the power in this extent the case last cited is authority, and Winkleman’s case does not, as I think, conflict with it.

I am not prepared to concede that we may not, upon writ of error, review the sentences of the' inferior courts in proceedings for contempts ; nevertheless, as we are agreed that no error intervened, and the result, so far as the plaintiff is concerned, is the same, I unite with Mr. Justice Beleord in the order to discontinue the writ of error.

Writ dismissed.  