
    Charles E. Hovey, as Survivor, etc., App’lt, v. George Elliott et al., as Executors, etc., et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed February 26, 1895.)
    
    1. Contempt—Jurisdiction.
    The provision of § 725 of the United States Revised Statutes limits the power to the modes of punishment for contempt specified and operates as a negation of any other method.
    2. Same.
    Such provision applies to the Supreme Court of the District of Columbia.
    3. Same.
    Congress may restrict and limit the exercise of the power of such court in the respect specified, though it may have given it general jurisdiction in law and equity.
    4. Same.
    Such provision applies to civil as well as to criminal contempts.
    
      5. Same.
    After an answer has been interposed in said court, it has no power to strike out such answer as a punishment for cbntempt of court and order judgment,without a trial of the issues presented.
    6. Same.
    Purchasers pendente lite of the subject matter of the action took the risk of the litigation then pending, but, in doing so, did not assume the risk of any punishment that might be inflicted upon the vendors in an independent proceeding.
    Appeal from judgment of the general term of the superior court of the city of New York, entered upon an order which affirmed a judgment in favor of defendants entered upon the-report of a referee dismissing the complaint.
    
      Herbert B. Titus, for app’lt; Everett P. Wheeler, for app’lt John Seldon and William G. Choate for resp’ts.
    
      
       Affirming, 48 St. Rep. 399
    
   Haight, J.

This action was brought to have the defendants’' testator adjudged to be .a trustee of certain bonds for the benefit, of the plaintiffs and that they have a lien thereon and that the de-' fendants account to them therefor.

In September, 1873, the mixed commission on British and American claims, sitting at the city of Washington, awarded to-one Augustin R. McDonald the sum of $197,000 in satisfaction of his claim for cotton destroyed during the war of the rebellion. In the following October the plaintiffs filed in the Supreme Court of the District of Columbia a bill in equity against McDonald and one William White, his assignee, for the sum of $49,297.50, alleging therein that McDonald was indebted to- them under an agreement whereby, in consideration of services to be rendered in the prosecution of such claim, they were to receive a sum - equal to twenty-five per centum of the amount that should be recovered and that they have a lien to the extent of such sum upon the award in his favor. Such proceedings were thereafter had that one George W. Biggs, a banker in the city of Washington, was appointed receiver, and one-half of the sum so awarded was paid over to him as such to meet the claim and lien of the plaintiffs. As such receiver and pursuant to the directions of the court, he invested the funds in certain bonds of the District of Columbia.6 guaranteed by the United States and payable at its treasury. The defendants then interposed a demurrer to the plaintiffs’ bill, which was sustained, and on the 24th day of June, 1875, a decree was entered dismissing the plaintiffs’ bill, with costs. On the same day the plaintiffs entered an appeal from the decree to the general term of the Supreme Court of the District of Columbia.* On June 28th, 1875, another decree was entered in precise conformity with the former decree, but supplemented by a direction to the receiver to pay to the defendants McDonald and White the funds in his hands as such receiver. On the same day McDonald and White called upon the receiver and demanded the bonds in-question. He thereupon first consulted with the judge holding the court in which the decree was entered, and, after being advised by such judge that the_ bonds should be surrendered, he delivered them over to McDonald and White, who on the same day sold and delivered the bonds for full value to the banking firm of Riggs & Co., of which the receiver was a partner. Riggs & Co. then surrendered the bonds to the treasury of the United States, receiving new bonds therefor, which were thereafter sold and delivered to various purchasers.

On July 2d, 1875, the plaintiffs took an appeal to the general term of the Supreme Court of the District of Columbia from the decree of June 28, 1875, and on March 4, 1876, that decree, as well as the one that preceded it, was reversed and the cause was remanded to the special term, with leave to the defendants to answer. An answer was then interposed, and upon the issues raised thereby testimony was taken at divers times during the years 1876 and 1877. On the 15th day of June, 1877, plaintiffs obtained an order from the Supreme Court of the District of Columbia, requiring the defendants McDonald and White to pay over to the registry of the court the sum which had been delivered to them by the receiver. This order was not complied with, and .thereupon the plaintiffs moved that the defendants McDonald and White show cause why they and each of them should not be punished as for a contempt; and such proceedings were thereupon had that they were adjudged to be guilty of a-contempt, and that the answer filed by them in the cause be stricken out and removed from the files of the court. Judgment was thereafter entered against them -pro confessa adjudging that the plaintiffs had a lien upon the bonds.

This action is based upon the judgment so entered, and is prosecuted upon the theory that notice to Riggs of the pendency of the action was notice to all of his partners. Weetjen v. St. P. & P. R. R. Co., 4 Hun, 529: 3 Kent Com. 105. The defendants’ testator resided in the city of New York, and was one of the members of the banking firm of Riggs & Co. He only was served with summons in this action.

The referee has found, as conclusions of law, “first, that in order to enable the plaintiffs to sustain this action the decree rendered by the Supreme Court of the District of Columbia must. „be a valid decree, binding upon the defendants; second, that from the operation of that decree the defendants in this action enjoy exemption and immunity under section 725 of the Revised Statutes of the United States; third, that from the effect and operation of the decree the defendants enjoy immunity and exemption under that provision of the fifth amendment to the Constitution of the_ United States, which prohibits the deprivation of property without due process of law; fourth, that the Supreme Court of the District of Columbia had no jurisdiction to render the said decree and that the same was and is null and void,” etc.

As to the first conclusion of law the parties agree. The controversy is in reference to the other three. The third conclusion is based upon the fifth amendment to the Constitution of the United States, which prohibits the deprivation of persons of property without due process of law. Inasmuch as the consideration of what is due process of law will to some .extent be involved in the determination of the validity of the judgment upon which this action is based, we only deem, it necessary to consider the second .and fourth conclusions of law found by the referee. We shall also, for the purpose of this review, assume, without deciding the question, that Riggs & Co. were purchasers of the bonds pendente ■lite, with knowledge of the existence of the suit, although it appears that the purchase was made after judgment, for full value, in good faith-, under the supposition that they had the right to purchase freed from all liens, and that they had no notice that an .appeal had been taken. Considering - them as such purchasers, were they bound by the determination made in the action then pending? Section 725 of the United States Revised Statutes provides that:

“The said courts (referring to the courts of the United States) shall have power to impose and administer all necessary oaths, and to punish, by fine or imprisonment, at the discretion of the court, ■contempt's of their authority: Provided, that such power to punish contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice, the misbehavior ■of any of the officers of said courts in their official transactions, and the disobedience or resistance of .any such officer, or by any party, juror, witness or other person, to any lawful writ, process, order, rule, decree or command of the said courts;”

Under this statute the referee has reached the conclusion that the supreme court of the District of Columbia had no power to punish the defendants for a' contempt by striking out their answer and adjudging that the plaintiffs had a lien upon the bonds.

In ex parte Robinson, 19 Wall. 512, Field, J., in delivering the opinion for the court, says: “ The power to punish for contempts is inherent in all courts. Its existence is essential to the preservation of order in judicial proceedings and to the enforcement of the judgments, orders and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject they became possessed of this power, but the power has been limited and defined by the act of Congress of March 2, 1831. The act in terms applies to all courts. Whether it can be held to limit the authority of the supreme court, which -derives its existence and powers from the Constitution, may, perhaps, be a matter of doubt, but that it applies to the circuit and district courts there can be no question. These courts were created by an act of Congress. There powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction. The act of 1831 is, therefore, to them the law specifying the cases in which summary punishment for contempt may be inflicted. It limits the power of these '-courts in this respect to three classes of cases. * * * The law happily prescribes the punishment which the court can impose for contempts. The 17th section of the judiciary act of 1789 declares that the courts shall have power ■ to punish contempts of their authority in any cause or hearing before them, by fine or imprisonment at their discretion. The enactment is a limitation upon the-manner in which the power shall be exercised, and must be held to be a negation of all other modes of punishment. The judgment of the court disbarring the petitioner, treating it as a punishment for a contempt, was, therefore, unauthorized and void.”

In Anderson v. Dunn, 6 Wheat. 204-227, Johnson, J., says “ It is true that the courts of justice of the United States are vested by express statute provision with power to fine and imprison-for contempt. * * * It is a legislative assertion of this right as incidental to the grander judicial power, and can only be considered authority-as an instance of abundant caution, or a legislative declaration that the power of punishing for contempt shall not extend beyond its known and acknowledged limits of fine and imprisonment.”

In U. S. ex rel. D. & N. O. Ry. Co. v. Atchison, T. & S. F. Ry. Co., 16 Fed. R. 853, McCrary, J., says : “ The povfer of the court is limited to the punishment of the party charged with contempt, and under the provisions of section 725 of the Revised-Statutes of the United States such punishment must be by fine or imprisonment. ' That section provides that circuit courts shall have power to punish by fine or imprisonment, at the discretion, of the court, contempts of their authority. This enactment, says the supreme court, is a limitation upon the manner in which the power may be exercised, and must be held to be a negation of all other modes of punishment.” Citing Ex parte Robinson, supra.

In U. S. ex rel South. Ex. Co. v. Memphis & Little Rock R. Co., 6 Fed. R. 237-239, Hammond, J., says: “Obedience to an injunction against privileged persons and corporations was sometimes enforced by sequestration, which placed, the property of thcontemnor in custody until obedience was given. 2 Daniell Ch. Pr. [5th ed.] 1685, 1687; 2 Bish. Cr. L. [6th ed..] §§ 241, 273 ; Spokes v. Banbury Board of Health, L. R. [1 Eq.] 42, and cases cited by these authorities. Our Revised Statutes, taken from the act of March 2, 1831, c. 99, and prior acts of Congress have prescribed the mode of punishment, and directed that it shall be by fine or imprisonment, and this operates as a negation of all other-modes. of punishment.” See, also, In re Cary, 10 Fed. R. 622, 625; In re Graves, 29 id. 60; Interstate Commerce Com. v. Brimson. 154 U. S. R. 447-489; Ex parte Bradley, 7 Wall. 364.

It may be that the cases above referred to are not in strict accord with the rule recognized in this state in which a court of equity may refuse to a party in contempt the benefit of proceedings pending in it when asked by him as a favor until he has-purged himself-of his contempt. Brinkley v. Brinkley, 47 N. Y. 40; Walker v. Walker, 82 id. 260; Gross v. Clark, 87 id. 272. But in this state the supreme court on its equity side is vested by the Constitution with all the power and authority that formerly existed in the high court of chancery in England, the common law remaining in force excepting so far as it has been changed by statute. The legislature in this state, therefore, may not be abiete limit or deprive the supreme court of any of its jurisdiction or powers.

Has the supreme court of the District of Columbia like jurisdiction and powers ? It was created by act of Congress and not by the Constitution. It consequently follows that Congress, which gave it life and invested it with power, may restrict and limit its exercise, and this notwithstanding the fact that it may have given it general jurisdiction in law and equity. To Congress is given the exercise of exclusive legislation in all cases whatsoever over such disrict as may by cession of particular states and the acceptance of Congress become the seat of government of the United States. U. S. Const, art. 1, § 17. It may, therefore, create, empower, limit and remove. In creating the supreme court of the District of Columbia it was provided that it “ shall possess the same powers and exercise the same jurisdiction as is now possessed and exercised by the circuit court of the District of Columbia, and the justices of the court so to be organized shall severally possess the powers and exercise the jurisdiction now possessed and exercised by the judges of said circuit court.” Act of March 3, 1863, 12 U. S. St. 762, ch. 91. The circuit court of the District of Columbia and the judges thereof prior thereto had been invested with “ all the powers by law vested in the circuit courts and the judges of the circuit courts of the United States.” 2 U. S. St. ch 15, § 3, p. 105. And by the judiciary act of 1801, Feb. 13, it was provided “ that the circuit courts shall have and hereby are invested with all the powers heretofore granted by law to the circuit courts of the United States, unless where otherwise provided by this act.” 2 U. S. St. ch. 4, § 10.

By the Judiciary Act passed September 24, 1789, it was provided that “the Circuit Courts shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of $500, and the United States are plaintiffs or petitioners, or an alien is a party, or the suit is between a citizen of the.state where the suit is brought and a citizen of another state. 1 U. S. St. ch. 20, § 11, p. 78. This provision was re-enacted in the revision of 1873. U. R. S. S. § 629. In 1871 "it was provided that “the Constitution and all the laws of the United States which are not locally inapplicable shall have the same force and effect within the said District of Columbia as elsewhere within the United States.” 16 U. S. St. ch. 62, § 34, p. 426; § 93 E. S. of Dist. of Col. By section 760 of the Revised Statutes of the District of Columbia it is provided that “the Supreme Court shall possess the same powers and exercise the same jurisdiction as the circuit courts of the United States.”

It is thus apparent that the Supreme Court of the District of Columbia and the circuit courts of the United States are placed upon the same footing and invested with the same jurisdiction and powers, except as to the residence of parties. They are each given jurisdiction of suits of a civil nature at common law or in equity. Heither have common-law jurisdiction except that conferred by statute, and consequently, each is controlled by subsequent legislation.

In 1801 the laws of Maryland were continued in force over that portion of the District of Columbia ceded to the government by that state, but this statute only remained in force in so far as it was not inconsistent with other statutes or not modified or repealed. R. S. of Dist. of Col. § 92; 2 IT. S. St. eh. 15, sec. 1, p. 104.

Does section 725 of the Revised Statutes apply to the District of Columbia? Our attention has been called to no rule of the Supreme Court of the District of Columbia, or statute, that is in conflict with its provisions. It is not locally inapplicable, and under section 93 of the statute above referred to we see no reason why it is not given the same force and effect within' the district that it has elsewhere within the United States. It may be that other sections of the same chapter may not apply to the District of Columbia, but it is because they are either locally inapplicable, or there are local rules or statutes covering the same subject-matter. See Hovey v. McDonald, 109 U. S. R. 150, construing section 1007 of the U. S. R. S. We consequently are of the opinion that section 725 of the Revised Statutes of the United States is in force in the District of Columbia, and as construed by the United States courts, it restricts the Supreme Court of the District, in its punishment for contempt, to either a fine or imprisonment.

Was the decree entered in the action against McDonald and White void or was it merely voidable, and are the defendants in this action bound thereby ? In 12 Am. & Eng. Ency. of Law at page 1470, under the head of judgments, it is said that “It is an axiom of the law that judgments entered without any jurisdiction are void and will be so held in a collateral proceeding, and there is a strong and growing tendency in all the courts to hold that although a court had jurisdiction over both the person and the subject-matter, but did not have jurisdiction to enter the particular Judgment entered in the case, such judgment is void and may be collaterally impeached.” See note 3 thereunder, and note 1 on page 247.

In McVeigh v. The U. S., 11 Wall. 259-267, a libel for information was filed in the District Court for the district of Virginia for the forfeiture of certain real and personal property of one William McVeigh. The libel alleged that he held an office under the Confederate government, and that he had taken the oath of allegiance to support that Constitution of that government. He appeared by counsel, made a claim to the property and filed an answer. The attorney for the United States moved that the claim, answer and appearance be stricken from the files upon the ground that he was at the time a resident of the city of Richmond within the Confederate lines and a rebel. The motion was granted, and subsequently his default was taken and a decree rendered pro confesso for the condemation and sale of his property. The judgment was reversed in the supreme court. Justice Swayne, in delivering the opinion, says: “In our judgment the district court committed a serious error in ordering the claim and answer of the respondent to be stricken from the files. As we are unanimous in this conclusion our opinion will be' confined to that subject. The order, in effect, denied the respondent a hearing. It is alleged that he was in the position of an alien enemy, and hence could have no locus standi in that forum. If assailed there he could defend there. The liability and the right are inseparable. A different result would be a blot upon our jurisprudence and civilization. We cannot hesitate or doubt on the subject. It would be contrary to the first principles of the social compact and of the right administration of justice.”

In Windsor v. Mc Veigh, 93 U. S. R. 274, the same question was again brought before the court under an action of ejectment to recover certain real property which had been acquired under the decree mentioned in the former easel Justice Field, in delivering the opinion of the court, says: “ The doctrine inv.oked by counsel, that, where a court has one'e acquired jurisdiction, it has the right to decide every question which arises in the cause, and its judgment, however erroneous, cannot be collaterally assailed, is- undoubtedly correct as a general proposition, but, like all general propositions, is subject to many qualifications in its application. All courts, even the highest, are more or less limited in their jurisdiction. They are limited to particular classes of action, such as civil or criminal, or to particular modes of administering relief, such as legal or equitable. * * * Though the court may possess jurisdiction of a cause, of the subject-matter, and of the parties, it is still limited in its modes of procedure and in the extent and character of its judgments. It must act judicially in all things, and cannot then transcend, the powe'r conferred by the law. If, for instance, the action be upon a money demand, the court, notwithstanding its complete jurisdiction over the subject and parties, has no power to pass judgment of imprisonment m the penitentiary upon the defendant. If the action be for libel, or for personal tort, the court cannot order in the case a specific performance of a contract. If the action be for the possession of real property, the court is powerless to admit in the case the probate of a will. Instances of this kind show that the general doctrine stated by counsel is subject to many qualifications. The judgments mentioned, given in the cases supposed, would not be merely erroneous, they would he absolutely void, because the court in rendering them would transcend the limits of its authority in those cases.”

In Ex parte Lang, 18 Wall. 163-176, the prisoner had been convicted of the crime of stealing mail bags. He was sentenced to one year’s imprisonment and to pay a fine of $200, and was on the same day committed to jail in execution of his sentence. On the following day he paid the fine. The statute authorized imprisonment or fine. It did not authorize both. On the next day the prisoner was brought before the court and an order was entered vacating the former judgment and the prisoner was again sentenced to one year’s imprisonment. Mr. Justice Miller, in delivering the opinion of the supreme court, says in reference thereto: “We are of the opinion that when the prisoner, as in this case, bv reason of a valid judgment, had fully suffered one of the alternative punishments to which alone the law subjected him, the power of the court to punish further was gone. * * * It is no answer to this to say that the court had jurisdiction of the person of the prisoner and of the offense under the statute. It by no means follows that these two facts make valid, however erroneous it may be, any judgment the court may render in such case. If a justice of the peace, having jurisdiction to fine for a misdemeanor, and with a party charged properly before him, should render a judgment that he be hung, it would simply be void. Why void ? Because he had no power to render such a judgment. So, if a court of general jurisdiction should, on an indictment for libel, render a judgment of death, or confiscation of property, it would, for the same reason, be void. Or if, on an indictment for treason, the court should render a judgment of attaint whereby the heirs of the criminal could not inherit' his property, which should, by the judgment of the court, be confiscated to the state, it would be void as to the attainder, because in excess of the authority of the court and forbid by the Constitution.” Ex parte Fiske, 113 U. S. R. 713-718 ; In re Bonner, 151 id 242 ; In re Mills, 135 id. 263-270; Ex parte Terry, 128 id. 289-304; Ex parte Reed, 100 id. 13-23; In re Frederick, 149 id. 70-76 ; Bigelow v. Forrest, 9 Wall. 339. See, also, note entitled “Want of Authoiity under Jurisdiction Conferred,” in Morrill v. Morrill, 11 L. R. A. 157.

We have examined, but do not here refer to, the cases in which irregularities only appear in the judgments entered, in which it has been held that they are voidable only and cannot be attacked collaterally. The question presented may be close and upon the border, but we are inclined to the view that as to Riggs & Co. the judgment is void; that after the answer had been interposed by the defendants the court had no power to order judgment without a trial of the issues presented. In the language of Justice Field, above referred to, the court, although having jurisdiction of the case and of the parties, “ is still limited in its modes of procedure and in the extent and character of its judgments.”

Assuming that the members of the firm of Riggs & Co. purchased the bonds with notice of the pendency of the action, and that they took the same subject to the determination therein to be made, they had the right to have the question at issue determined upon the merits. McDonald and White were, as to them, assignors for value, and they had no power, by acts or declarations thereafter done or made, to impeach the title so transferred to Riggs & Co. McDonald and White could not, by fraud or collusion with the plaintiffs, impair their title, or, by a confession of judgment, deprive them of their rights to the bonds. Riggs & Co. were not parties to that action, and it does not appear that they ever had notice of the proceedings in contempt. As purchasers pendente lite Riggs & Co. took the risk of the litigation then pending, but in so doing did not assume the risk of any punishment that might be inflicted upon McDonald and White in an independent proceeding. Conner v. Reeves, 103 N. Y. 527-532; 4 St. Rep. 216; Ferguson v. Crawford, 70 id. 253.

It is contended that the decree striking out the defendants’ answer was not based upon the proceedings in contempt; but the proceedings, orders and decree do not support this contention. If the answer was not stricken out as a punishment for the contempt <of which the defendants had been convicted, then by what authority were the defendants deprived of their right to a trial and a determination of the issues involved ? Again, it is said that § 725 of the Revised Statutes has reference to criminal and not civil contempts, but no such distinction is found in the statute, or is •made by the authorities construing the same.

The judgment appealed from should be affirmed, with costs.

All concur.

Judgment affirmed.  