Hammersley v. Parker

The order for the attachment in this case was not irregular, and the vice chancellor, therefore, erred in setting it aside on that ground. For the order was eqtered under the direction of the court, and upon due notice of an order to show cause, at that time, why an order for an attachment should not be granted. The error was in the previous order to show cause; which order did not give to the defendant the full four days to attend before the master, and to pay the costs, before the time appointed to show cause against the order for an attachment. And if the defendant’s counsel had attended before the vice chancellor on Monday the 14th of April, as he should have done, and showed that he was willing to attend before the master and to comply with the terms of the order, and to pay the costs, the vice chancellor would, as a matter of *27course, have enlarged the time for that purpose. The order of the 9th of April was erroneous in another respect; as it did not specify the amount of the costs which the defendant was required to pay. The settled practice of the court is to direct eight dollars to be inserted in the order, unless the court, for. special reasons appearing in the papers on which the ex parte order is founded, thinks proper to direct a larger sum to be paid. But the amount, even in that case, should be ascertained and inserted in the order, so that the defendant may know what he is to pay, to purge his contempt in not appearing before the master pursuant to the original order of reference and upon the summons of the master.

As mistakes are constantly occurring in relation to proceedings of this kind, it may be proper to state the course to be pursued in such cases. Where the order of reference, or the decree, directs the defendant in a creditor’s suit to attend before the master, upon the appointment of a receiver, or to make an assignment of his property, or to be examined in relation thereto, it is his duty to attend upon the day of the return of a summons requiring his personal attendance, or on any other day to which the proceedings are adjourned, or he will be in contempt; and will be liable to be punished for his disobedience of the order of the court. If he has any sufficient excuse, therefore, for not attending before the master at the time required, either by reason of sickness of necessary absence from home, his solicitor or counsel should attend before the master, with the proper evidence,of the sufficiency of the excuse. , And in such case it will be the duty of the master, if he deems the excuse sufficient, to enlarge the time for attendance. The defendant may also apply to the court for relief, if the master errs in refusing to enlarge the time for attendance, when, a sufficient excuse is shown for not attending at the day appointed.

But even where the defendant’s solicitor neglects to attend and get the time enlarged, the court will not, in ordinary cases, proceed at once to punish the defendant for his contempt, or to subject him to the extra expenses of an attachment; provided he will attend before the master within a reasonable time, to be *28fixed by the court, and comply with the terms of the order and pay the costs to which the complainant has been subjected in consequence of the previous default. The usual time allowed for that purpose, where the defendant lives in the same city or town with the master before whom he is required to attend, is four days after service of the copy of the order and of the papers upon which it is founded. And where the defendant resides at a greater distance from the master, the court should regulate the time accordingly, in the order to show cause; so as to give the defendant a fair opportunity to comply with the conditions of the order, after the service of the same upon the defendant’s solicitor, or upon the defendant himself, or through the post office; according to the provisions of the 191st rule of the court. The complainant, therefore, upon the production of the decree, or order of reference, requiring the defendant to attend before the master, &c. and the master’s certificate of his default, and the evidence of the service of the summons, when such evidence is not contained in the official certificate of the master, may apply to the court ex parte, and obtain the usual order that the defendant attend before the master within four days after service of the copy of the order and of the papers on which it is founded, or within such other number of days as may have been directed by the court, and make the assignment or submit to the examination on oath, as the case may be, and pay to' the complainant eight dollars for the costs to which he has been subjected by such previous default, or show cause before the court, at such time as may be prescribed in the order, and after the expiration of the full number of days allowed for attendance before the master, why an attachment should not issue against him, or why he should not be punished for his misconduct. Where the* order specifies the particular motion day on which the defendant is to show cause before the court, it should direct the service to be made within such specified time after the making thereof as to give the defendant, after such, service, the full number of days specified in the order to attend before the master prior to the time appointed for showing cause. Or, if it is uncertain when the complainant will be able to serve the *29order and the papers upon which it is founded, such order may direct the defendant to attend before the master, and pay the costs, &c. within the number of days specified, after such service, or that he show cause before the court on the first regular motion day after the expiration of the time for his attendance before the master.

The order in such cases should recite so much of the alleged contempt of the defendant, in neglecting to attend before the master upon the return of the summons, as to apprise him of the misconduct charged, in neglecting to obey the original decree or order of reference. And such decree, or order of reference, must form a part of the papers upon which the order to show cause is founded, and must be served upon the defendant with such order to show cause; as it will be a necessary part of the papers to show that the defendant had been guilty of a contempt, in case he appears before the court to show cause. The statute authorizes the court to proceed either by attachment, or by an order to show cause why the defendant should not be punished for his alleged misconduct. (2 R. S. 536, § 5.) It is regular, therefore, to take the order in either form. But the usual course is to take an order that the defendant show cause why he should not be punished for his alleged misconduct, specified therein, in not attending before the master upon the return day of the summons, or other original default. And upon such an order, if the defendant does not comply with the condition thereof, or appear before the court to show cause, or if he appears and shows no sufficient cause to purge his contempt, an order will be made for his commitment until he complies with the terms of the original decree or order of reference, and pays the costs of the proceedings; which costs are usually fixed at eighteen dollars, in the shape of a fine, to be paid in addition to the sheriff’s fees on his commitment. The proceeding by attachment is more «expensive, and ought not to be resorted to without some good cause therefor. And if the complainant subjects the defendant to the useless expense of a proceeding by attachment, instead of obtaining an order to show cause why the defendant should not be punished for his misconduct, the court *30may refuse, to allow him the extra costs of such proceedings by attachment.

In the case under consideration, the order to set aside the attachment for irregularity, with costs, must he reversed. But as the whole difficulty appears to have arisen from the careless- • ness of the solicitor in drawing up the original order, without referring to the day of the week on which the four days allowed for attendance before the master would expire, and from not inserting in the order the amount of costs to be paid, the proceedings upon the attachment must be stayed, and the defendant discharged from the same, upon his paying to the complainant’s solicitor the eight dollars costs, and attending before the master within four days after service of a copy of the order, to be entered hereon, and submitting to be examined, &c. and to do such other acts as may be required of him by the master. But if the defendant neglects to pay the costs, and to attend before the master, within the time specified, the complainant is to be at liberty to proceed upon his attachment, to punish the defendant for his original contempt in neglecting to attend before the master.

Neither party is to have costs as against the other upon this appeal or upon the motion to the vice chancellor; and the proceedings are to be remitted.