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In re Fox

April 2, 1938

IN RE FOX; LEITSTEIN
v.
CAPITAL CO. ET AL.



Appeal from the District Court of the United States for the District of New Jersey; John Boyd Avis, Judge.

Author: Buffington

Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.

BUFFINGTON, Circuit Judge.

Upon a certificate for contempt issued by the referee in bankruptcy, the District Court issued a rule to show cause why the appellant, Leitstein, should not be adjudged in contempt of court because he had refused: (1) To answer certain questions asked him in a hearing before the referee under section 21a of the Bankruptcy Act, as amended, 11 U.S.C.A. ยง 44(a); (2) to permit certain pages of the cashbook of All Continent Corporation, hereinafter called All Continent, to be marked in evidence; (3) to open th book Exhibit P-31, at page 26; and (4) to permit counsel to inspect and examine the books of All Continent.

Upon the return of the rule, Leitstein was adjudged guilty of criminal contempt and was ordered to appear before the court to receive sentence and to appear before the referee and comply with his orders in relation to giving testimony, producing and marking in evidence certain documents, and other orders of the referee.

This case was based upon the contention that the questions which the appellant refused to answer were relveant and proper and that the documentary evidence sought and refused was admissible and proper and should have been produced by the appellant.

The appellant was found to be guilty of criminal contempt of the District Court and of the referee in bankruptcy and in consequence was ordered to appear: (1) To receive sentence for the criminal contempt, and (2) to give testimony before the referee and comply with his orders.

The District Court allowed an appeal from the order directing the appellant to appear for sentence and to give testimony. The appellees moved to dismiss the appeal on the ground that it was taken before the imposition of sentence and, therefore, premature. This contention is based upon the theory that this is a criminal contempt and is accordingly an independent action at law and in such case an appeal may not be taken except from final orders.

The question to be determined first is whether or not the appellant was guilty of criminal contempt.

The order from which appeal was taken is too broad. It is based upon the assumption that the learned District Judge had found the appellant guilty of both civil contempt and criminal contempt, whereas it found him guilty of criminal contempt only. The second part of the order is purely remedial and not punitive. In the case of Biderman v. Cooper, 3 Cir., 273 F. 683, we held that the court could not find the contemnor guilty of civil contempt and impose upon him a punitive sentence, for criminal contempt, and the converse is equally true.

The first paragraph of the order stated above directs the appellant to appear for sentence as in criminal contempt. If the contempt was criminal, the imposition of that sentence ended the court's authority to sentence the appellant further. The second paragraph of the order directs him to appear before the referee and give testimony and produce documentary evidence, which he had rfused to do. This part of the order is appropriate to civil contempt and was a means by which the appellant would purge himself of such contempt.

In civil contempt the punishment is remedial, to secure an end; while in criminal the punishment is punitive, to vindicate the authority and dignity of the court. It is not the fact of punishment but the purpose and character of it which distinguishes contempts. Punishment in civil contempt is imposed where it is sought to coerce a witness to do something which he has been directed to do and has refused, while in criminal contempt punishment is imposed for doing that which has been forbidden or for the violation of an order of the court. Punishment in criminal contempt cannot undo or remedy the thing which has been done, but in civil contempt punishment remedies the disobedience.

In the case of Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 442, 31 S. Ct. 492, 498, 55 L. Ed. 797, 34 L.R.A., N.S., 874, the court said: "If a defendant should refuse to pay alimony, or to surrender property ordered to be turned over to a receiver, or to make a conveyance required by a decree for specific performance, he could be committed until he complied with the order. Unless there were special elements of contumacy, the refusal to pay or to comply with the order is treated as being rather in resistance to the opposite party than in contempt of the court. The order for imprisonment in this class of cases, therefore, is not to vindicate the authority of the law, but is remedial, and is intended to coerce the defendant to do the thing required by the order for the benefit of the complainant. If imprisoned, as aptly said In re Nevitt [8 Cir.], 117 F. [448] 451, [the contemnor] 'carries the keys of his prison in his own pocket.' He can end the sentence and discharge himself at any moment by doing what he had previously refused to do."

The above quotation shows that the appellant here, if guilty of anything, is guilty of civil contempt. He was ordered to answer certain questions and to ...


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