
    Samuel M. Register, Appellant, vs. The State of Minnesota, ex rel., &c., Respondent.
    APPEAL FROM THE DISTRICT COURT OF WASHINGTON COUNTT.
    "Fraud in disposing of a trust fund cannot be reached and punished by proceedings for contempt in not obeying an order to pay it over to a receiver. The proceedings can only extend to punish - ing the Defendant for contumaciously refusing to obey the order.
    An order in such proceedings, directing the Defendant to be imprisoned until the payment of tho money, is an appealable order.
    This was a proceeding in the District Court of ’Washington County, to compel the Defendant, Register, to show cause why he should not be punished, as for contempt, in neglecting and refusing to pay over to tbe relator, tbe receiver in a certain action pending in said Court, a certain balance found against bim on an accounting in said action, amounting to $877.12.
    Upon tbe bearing under tbe order to show cause, and after proofs fro and con., tbe Court imposed a fine of $10, and it further appearing to tbe Court that it was not in tbe power of tbe Defendant to deliver and pay over said balance, it was adjudged that be be imprisoned in tbe common jail of Washington county, thereto remain charged with the said contempt, until be should have delivered and paid over said balance, with interest, &c., unless tbe Court shall see fit sooner to discharge bim, &c. Tbe Defendant appeals.
    Points and Authorities oí Appellant.
    I. — Tbe case disclosed by the record is not one in which the process for contempt lies, the judgment being for the recovery of money. Comp. Stat., p. 568, sec. 84; Remedy Toy Sup. Proceedings.
    
    II. — Tbe statute contemplates tbe examination of witnesses, fro and con, and a determination thereupon. Here there was no such examination, but tbe investigation began and ended with tbe foundation affidavits, and tbe answer of Regis-ter verified. Comp. Stat., chap. 81, secs. 11 and 12.
    It will be claimed that as the order recites of tbe “ examination” of Register, and the “ taking proof ” for and against, it is to be presumed that testimony was taken. This is false in fact, and as no diminution is suggested, tbe presumption is in accordance with tbe fact in this case that tbe “ proofs ” are tbe affidavit of service, notice, demand and refusal, &c., and tbe examination of Register is the interrogatories and tbe answer. Tbe Judge’s decision does not speak of testimony but of proofs and examination.
    HI. — This process does not lie for a simple refusal or neglect, but only in cases of Contumacy.
    IY. — Tbe Court has determined against the evidence. The answer was sufficient, and if insufficient, should have been excepted to, otherwise its sufficiency is admitted. All that is required of the answer is, that it responds to the interrogatories. By introducing no evidence the truth of the answer is conceded. 1 Ath., 53; 1 Yesey, 538; Cooper’s P. L. marg. paging, 318, 319; 4 Soammon,pp. 20,56, 146; 1 John. Ch. P., 103, 107j Cooper’s PI., Title Answer, mrn'g. p. 213.
    Y. — The order appealed from is appealable. It is a final order affecting a substantial right. The appeal is, in any event, brought in time, because no notice has ever yet been served. Sees. Paws, 1861, p. 133.
    Points and Authorities of Respondent.
    I. — ’The appeal in this caBe should be dismissed, because,
    1st. The order from which the appeal is attempted to be taken is not only not an appealable order, but is not an order in the above entitled action, there being none such.
    2d. That even if the order was'an appealable one, such an appeal should have been taken within fifteen, or at most sixty days, from the making of the same. Stat. Minn.,p. 673, seo. 25; Folsom vs. Evans et ail., 5 Minn., 418; 10 U. 8. Dig. {ar. 16.), p: 142, seo. 11; 11 ib., {ar. 17), p. 132, seo. 10; Balt, and Ohio P. P. vs. Wheeling, 13 Grattan (Fa.), 40.
    II. — There is no record in this Court from or by which the Court can determine whether there was or was not error in the> action of the Court below; and the proceeding below was not merely the hearing of a motion, but a trial upon the order to show cause.
    III. — The proceeding for a contempt is addressed to the judgment aed discretion of the Court in which the contempt is alleged to have been committed, and cannot be reviewed on appeal or revised by another tribunal, except in cases of want of jurisdiction. The People ex rel. vs. Nevins, 1 Hill., 154-165; 1 U. 8. Digest, p. 169, sec. 104, and eases cited', 15 B. Mon., 607; 14 Arh.,JS38,(544.
    IY. — This Court, even should it assume the right to review the action of the Court below, must presume that all the proceedings in the Court below were regular ; and it not appearing to the contrary, the proofs on the trial were sufficient to warrant the Court in the finding and order which it made. 
      Leamon vs. Derryea, 1 Kernan, 324; The People vs. Nevins, ■ 1 Rill, 154.
    V. — The Defendant’s answers to the interrogatories propounded to him, are wholly inadmissible, and are in themselves a contempt, as they attempt to contradict the finding of the Court that he did have in his hands the sum of $877.12 of trust fund.
    VI. — The fund being a trust fund, it was the duty of the Defendant to keep it separate from his other .business, and' the law presumes that he has done so ; and therefore the only means of excusing himself was to have specially accounted for what had become of it, and merely to answer that he did not have it at the date of the order, and cotxld not get it, is wholly insufficient and affords no relief against the charge of contempt or contumacy.
    Brisbiít & Warner, Counsel for Appellant.
    Cooper & Crowell, Counsel for Despondent.
   By the Court.

FlaNdrau, J.

The order committing the Defendant for contempt is appealable.

The case does not show a contempt of the Court by the. Defendant. It does hot appear that it was in the power of the Defendant to perform the act required of him, save by the legal presumption that the-trust fund remained in his hands, which presumption is fairly overcome by the testimony of the Defendant. The fraud the Defendant may have been guilty of in disposing of the trust fund, if such was the case, cannot be reached and punished by proceedings for contempt, in not obeying the order to pay it over to the receiver. These proceedings can only extend to punishing the Defendant for contumaciously refusing to obey the order. We think the Dé-fendant fairly purges himself of the charge of disobedience, by showing inability to comply.

There is an adequate remedy for improperly disposing of a trust fund by a trustee, or person acting in a fiduciary capacity. The party has mistaken his remedy if he intended to accomplish that end by proceeding in contempt. It may appear that the fund was lost to the trustee in a manner not involving him in culpability, or even responsibility, pecuniarily, when the question is properly presented.

The order is reversed and the Defendant discharged from custody.  