author: By TOBIN, J.

text:
    GOSHORN et, Minors, In re.
    Juvenile Court, Columbiana County.
    Nos. 7539, 7540.
    Decided August 13, 1959.
   OPINION

By TOBIN, J.

This matter came on to be heard on the motion of the mother and sole surviving parent of the. children involved, who appeared solely for the purpose of contesting the jurisdiction of the Court in this matter. The only question therefore before this Court is whether or not this Court has jurisdiction to hear this matter as to whether these children herein are neglected and dependent children and make a disposition of the custody of these children.

FACTS

The Court finds the following to be the facts:

That the mother, Iona Hartshorne, was involved in a contested divorce in the Court of Common Pleas, Columbiana County, being case No. 44111, in which she was found to be an unfit mother for the Hartshorne children involved in that particular divorce case. Prior to her marriage to Hartshorne, she had borne the children in question to her former husband, Goshorn, who is now deceased. That by virtue of the facts as adduced in the divorce in the Court of Common Pleas there was issued a temporary order turning the Goshorn children over to the Welfare Department and certifying the same to the attention of the Juvenile Court of this County; that the hearing on the divorce was on June 25, and June 26, 1959, and the Journal Entry on same was signed on June 29, 1959.

That on June 29, 1959, a complaint was filed by Goldie Kidder, Welfare Worker, charging the children in question as neglected and dependent children, and the mother unfit, and this Court made a temporary commitment by Journal Entry of the Goshorn children pending a full hearing, to the Welfare Department. Later on June 29, 1959, the probation officer of the Juvenile Court, together with an officer of the Welfare Department physically took control of the children from the mother and informed the mother that they were so doing and the reasons for it, reading the complaint to her; no citations were served at that time on the mother. This took place admittedly by all parties, in Columbiana County, Ohio.

After the children had so been taken, the mother then moved into Stark County to the home of the father of the man whom she married on July 10, 1959, and with whom she admittedly had an adulterous child. On July 29, 1959, citation was issued and served on the mother, the sole surviving parent in Stark County by the Stark County Sheriff and a return was duly made and a date set for hearing.

The Court finds from the testimony of the mother herself that she had a residence in Columbiana County up to and including the time when the children were actually taken into custody by the Welfare Department; that although she intended to move to Stark County to the home of her paramour, later her husband, she did not accomplish this until after the children had been taken. Her testimony was to the effect that she had not intended to move until June 30th, 1959, but hastened to move after the children had been taken from her. The Court further finds that she had resided continuously in Stark County since the late afternoon of June 29th, 1959, and after the children were removed.

There are two questions raised by the mother in this motion:

1. That jurisdiction does not attach to the Juvenile Court until service is had upon the mother and sole parent, and if this be true,

2. That the service not having been made until July 22, 1959, and when there can be no dispute that the mother was a resident in Stark County, that the Juvenile Court of Columbiana County did not have jurisdiction, by virtue of §2151.06 R. C., the legal residence follows that of the parent.

The Court will answer both of these questions:

The Court finds that both the mother and the children at the time they were taken into the custody of the Welfare Department, prior to June 29, 1959, were legal residents of Columbiana County, Ohio. That although the mother had intended changing her address in the near future, intention alone is not enough, and her residence and domicile remains unchanged until such time as the actual change is made to the new residence. In re: Gormans v. B. & O. R. R., 18 O. Jur. 172; In re: Michaels, 16 O. O. 110; In re: Case No. 52909, Docket 51 Pg. 310 of the Probate Court, Columbiana County, Joseph Kenneth Eddy, a minor, decided December 14, 1956.

Therefore, the Court finds that until the mother actually moved from Columbiana County to Stark County, and which was after the children had been taken into custody by the Columbiana County Department of Welfare, and after the filing of the affidavit charging dependency and neglect, both she and the children were residents of Columbiana County.

2. Does the jurisdiction of this Court, depend upon the time of service upon the mother? The answer to this question is no. Sec. 2151.27 R. C., which as far as germane reads as follows: “Any person having knowledge of a child under 18 who appears to be — delinquent, neglected or dependent — may with respect to such child file a sworn complaint in the Juvenile Court of the County .in which said child has a residence or legal settlement or in which such delinquency, neglect or dependency occurred.”

In the instant case, the legal residence or settlement of the children at the time of the filing, and at the time the children were taken into custody and control was Columbiana County. Further, the citations will indicate quite clearly service on parents is not needed to give jurisdiction if the neglect or delinquency took place in the County assuming jurisdiction. Reference is made to In re: Belk et al, 97 O. O. 194; 86 Oh Ap 377, State, ex rel., v. William, Judge. Those cases, and a clear reading of the Code indicates that the jurisdiction'of the Court is complete upon the signing of the affidavit alleging the facts that the child is neglected and dependent and upon taking of the child into custody in the County assuming jurisdiction.

However, in this case, the Court makes a clear finding that the legal settlement and domicile of the sole parent and children at the time of the filing of the affidavit and the taking of the children into custody was in Columbiana County, Ohio. The service of the copy of the complaint upon the mother, the time set for hearing at a later date, while it is good form to do so, for the purposes of setting a hearing on the issues in the case is not a prerequisite for the Court to obtain jurisdiction.

Mother’s motion is denied, cause is remanded for hearing on the matter at a time to be set by the Court.

EXCEPTIONS ALLOWED TO THE MOTHER. SEE JOURNAL.


source: Caselaw Access Project

author: By SKEEL, J.

license: Public Domain

text:
    VLAD et, Plaintiffs-Appellees, v. CLEVELAND (City), Board of Zoning, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24993.
    Decided February 24, 1960.
    Henry DuLaurence for plaintiffs-appellees.
    Ralph S. Locher, Director of Law, Irving Silbert, Asst., for defendant-appellant.
   OPINION

By SKEEL, J.

This appeal comes to this court from a judgment entered on appeal to the Court of Common Pleas of Cuyahoga County from a final order of the Zoning Board of Appeals of the City of Cleveland. The appellees in this court are the owners of two vacant lots located on the east side of Rocky River Drive in Cleveland, which prior to 1943 were zoned Class C-l Business. In 1943, the comprehensive zoning ordinance of the City of Cleveland was amended changing the zoning classification of these lots and some other property in the vicinity from Class C Business (which would permit the construction of a gasoline service station) to Class B Dwelling House (two-family houses).

The amendment as first proposed in 1943 was to change the zoning of the property fronting in the immediate district on Rocky River Drive, including plaintiff’s property, from a Class C-l Business to a Class C-l Apartment House District. After notice was published, as provided by law, and hearing had,, the proposal was submitted to the Planning Commission. After study, they suggested the amendment be changed to rezone the property for “Class B Dwellings.” The amendment as changed was then presented for action to the City Council and subsequently passed so that the plaintiff’s property is and has been since 1943 zoned for Class B Dwelling use.

The property owners made application for a permit to erect a gasoline service station on their property on May 16, 1958. Before the amendment to the zoning ordinance, the use requested in appellee’s application would have been a permissible use. The Commissioner of Building and Housing refused the application because of the zoning restriction, which decision was affirmed upon appeal to the Board of Zoning Appeals.

This decision was appealed to the Court of Common Pleas. The property owner claimed in his appeal to the Court of Common Pleas that: '

“1. The amendment was not legally passed and, therefore, the old zoning applied.

“2. The zoning ordinance, as amended, is unconstitutional as to the appellant’s property as situated and is arbitrary and unreasonable.”

The notice of appeal stated that the appeal was on law and fact but no appeal bond was filed. Also an affidavit was filed under §2506.03 R. C., seeking to introduce evidence in addition to that contained in the transcript certified by the Commission as the record and evidence upon which the application was considered by the Board. The affidavit states as the reasons for requesting additional evidence that the appellant desired:

“1. To cross-examine witnesses purporting to refute appellant’s position, arguments and contentions.

“2. To offer evidence and testimony offered in opposition to appellant’s position, arguments and contentions.

“3. That persons were allowed to give their evidence without the resemblance of evidence and testimony and without their names being given with their alleged views and so they could be cross-examined; —in an unjudicial manner, and so that it would appear whether or not their views were given under oath;

“That there further appears on the face of said transcript the grounds set forth in §2506.03 R. C., which entitle appellants to have the Court hear additional evidence, which the appellants desire to introduce, and to cross-examine any person who previously gave testimony in opposition.”

The court permitted the taking of additional evidence and overruled the City’s motion to dismiss the appeal for failure to file an appeal bond. We find that the record before the Board was such that the taking of additional evidence was correctly permitted.

Upon hearing on the merits, the co.urt reversed the order of the Board, making the following entry:

“It is therefore the judgment of the Court in accordance with the findings herein above made, that the order of the Board of Zoning Appeals is reversed and vacated and this cause remanded to the Board of Zoning Appeals with instructions to enter and order consistent with the findings and opinion of the Court, that it order the Commissioner of Building and Housing to grant to the said appellants their application for a permit as therein applied for; and further, that the said Commissioner of Building and Housing is ordered to issue the permit applied for and in accordance with the terms thereof.”

The City’s assignments of error are;

“(1) The Court of Common Pleas erred in finding that an appeal filed under §§2506.01 to 2506.04 inclusive, R. C., was neither an appeal on questions of law nor one on questions of law and fact but a new type of appeal.

“(2) The Court of Common Pleas erred in finding that the supersedeas bond required by §2505.06 R. C., for the perfecting of an appeal on questions of law and fact was not required under the provisions of §§2506.01 et seq, R. C.

“(3) The Court of Common Pleas erred in permitting the appellee to introduce evidence which was available but not proffered at the hearing before the Administrative Agency.

“(4) The Court of Common Pleas erred in finding that zoning ordinance No. 533-43 of the City of Cleveland is unenforceable and violative of the constitutional rights of the appellees.

“(5) The Court of Common Pleas erred in finding that the order of the Board of Zoning Appeals was contrary to the manifest weight of the evidence presented to said Board.”

It should be noted at the very outset that the question presented in appellee’s brief as to the validity of the amendatory ordinance is not before this court. The plaintiff-appellee did not file a separate appeal bringing that question up to this court for consideration, nor was a cross appeal filed as provided by §2505.22 R. C., which, under the claims presented, would have been proper in this case.

We come, therefore, to the questions of law presented by the claims of the appellant. The right to appeal to the courts from the final order of an administrative agency is now clearly provided by law. While §119.12 R. C., is limited to state agencies, §2505.03 R. C., and Chapter 2506 R. C., when taken together, provide for appeals to the courts from administrative agencies of all political subdivisions of the government, state or local. Sec. 2505.03 R. C., provides:

“Every final order, judgment, or decree of a court and, when provided by law, the final order of any administrative officer, tribunal, or commission may be reviewed as provided in §§2505.04 to 2505.45 inclusive, R. C., unless otherwise provided by law, except that appeals from judgments of justices of the peace upon questions of law and fact shall be taken as provided in §§1921.01 to 1921.16 inclusive, R, C.”

That the right thus provided includes all administrative agencies is supported by the eases of A. DiCillo & Sons, Inc. v. Chester Zoning Board of Appeals et al, 158 Oh St 302, 109 N. E. 2d 8, and Mentor Lagoons, Inc. v. Zoning Board of Appeals, 168 Oh St 113, 151 N. E. 2d 533.

In some cases the procedure to be followed on appeals to the court from administrative agencies, where not provided for by the legislative act creating the agency, was somewhat in doubt so that in 1957 a special act was passed to clarify the steps to be taken. Sec. 2506.01 R. C., provides in part:

“Every final order, adjudication, or decision of any officer, tribunal, authority, board bureau, commission, department or other division of any political subdivision of the state may be reviewed by the common pleas court of the county in which the principal office of the political subdivision is located, as provided in §§2505.01 to 2505.45 inclusive, R. C., and as such procedure is modified by §§2506.01 to 2506.04 inclusive, R. C.

“The appeal provided in §§2506.01 to 2506.04 inclusive, R. C., is in addition to any other remedy of appeal provided by law.”

Sec. 2506.02 R. C., provides the manner in which the transcript of the proceedings shall be presented to the court as the evidence upon which the appeal will be considered. Sec. 2506.03 R. C., provides that the appeal shall proceed as in the trial of a civil action, the court being confined in the consideration of questions of fact to the transcript, unless, for the reasons therein set out, in the interest of justice, additional evidence is required. In such event the court may permit the taking of additional evidence. The provisions of this Chapter are to be considered as supplementing the then existing provisions for appeals to the Court of Common Pleas from final orders of administrative agencies under Chapter 2505 R. C.

The provisions of Chapter 2505 R. C., having to do with appeals on law and fact as limited by §2501.02 R. C., are not applicable to appeals from administrative agencies. The fact that the notice of appeal in this case set out that the appeal was on law and fact is not determinative of the nature of the appeal. Except as provided by Chapter 1921 R. C., which permits an appeal from the county court to the common pleas court on questions of law and fact, appeals from judicial decisions on law and fact are confined to matters in chancery. But even under such judicial appeals, the failure to give bond requires that the appeal proceed as one on questions of law and does not require a dismissal of the appeal. The claim that the appeal was not properly perfected is, therefore, overruled. This disposes of Claims of Error one, two and three.

The final question dealing with the judgment entered by the court directing the City to issue a permit for the construction of an oil and gasoline service station on the appellee’s property is dependent upon the authority granted the court under §2506.04 R. C. This section provides:

“The court may find that the order, adjudication or decision is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable and probative evidence on the whole record. Consistent with its findings, the court may affirm, reverse, vacate, or modify the order, adjudication or decision, or remand the cause to the officer-or body appealed from with instructions to enter an order consistent with the findings or opinion of the court. The judgment of the court may be appealed by any party on questions of law pursuant to §§2505.01 to 2505.45 inclusive, R. C.”

The finding of the court was that as to appellee’s property, the amended ordinance of 1943, changing the zoning of such property from Class C-l Business to Class B Dwelling (two family dwellings) was unenforceable and violative of the constitutional rights of the appellee is supported by reliable and probative evidence as shown by the record. Assignments of error four and five are, therefore, overruled.

For the foregoing reasons the judgment is affirmed.

HURD, PJ, KOVACHY, J, concur.


author: Per CURIAM.

text:
    HAMILTON, Petitioner, v. DILLON, Superintendent of the Columbus State Hospital, Respondent.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6293.
    Decided November 17, 1959.
    Bruce J. Donaldson, Detroit, Michigan, Lewis F. Byers, Guardian ad litem of Robert Dow Hamilton, Columbus, for petitioner.
    ' Mark McElroy, Atty. Geni., William Vance, Asst. Atty. Geni., Columbus, for respondent.
    John J. Chester, Jr., Columbus, as Amicus Curiae.
    (CRAWFORD, J, of the Second District, sitting by designation in the Tenth District.)
   OPINION

Per CURIAM.

The petitioner seeks a writ of habeas corpus claiming that he is unlawfully restrained of his liberty at the Columbus State Hospital where he has been since September 18, 1959. The return of the writ indicates that the petitioner is at the Columbus State Hospital by reason of an order of the Probate Court of Franklin County, Ohio, which committed him after finding that the petitioner was mentally ill and a suitable person for care and treatment in the Columbus State Hospital at Columbus, Ohio.

The application for writ of habeas corpus places in issue the question of the jurisdiction of the Probate Court of Franklin County to conduct a hearing on the question of the mental illness of the petitioner under provisions of §5133.01 R. C., and succeeding sections of the Revised Code. The affidavit necessary to start the proceeding, as provided in §5133.18 R. C., was filed September 18, 1959, by Emily I. Hamilton who is also known as Mrs. Robert Dow Hamilton, and who is either the wife or divorced wife of the petitioner.

It is alleged by the petitioner that §5123.18 R. C., only permits the “next of kin, or a resident of the county in which the person alleged to be mentally ill has a legal residence” to file the affidavit in the probate court and that Emily I. Hamilton was neither a resident of the county nor of next of kin of the petitioner.

In support of the allegation that she was not the next of kin the petitioner has submitted evidence of a divorce decree obtained in the state of Florida under date of February, 1959, and as a divorced wife could not be considered the next of kin under any definition. Petitioner further argues that in obtaining the Florida divorce in February of 1959. Emily I. Hamilton had to show a residence in Florida and that final judgment having been entered in the Florida court, the decree or final judgment is not subject to attack here in Ohio in this proceeding, and the court must recognize her legal residence as being in Florida.

Evidence presented at the time of hearing indicated that the petitioner and Emily I. Hamilton had a residence in Franklin County, Ohio, having voted in Ohio in November of 1958; and that on the last day of December, 1958, they went to Miami, Florida; that on February 6, 1959, a divorce was obtained in Tallahassee, Florida, and in the divorce petition Emily I. Hamilton gave as her address Route 1, Clearwater, Florida, and indicated that she had resided there since March 1958. At the hearing in the instant case she stated that the answers regarding residence in the divorce petition were not entirely correct and that she never had resided in Clearwater, Florida, but had stayed there two weeks with a brother.

At the time she filed the affidavit in the Probate Court of Franklin County, she stated that she was residing in the home owned by Mr. Hamilton at 260 North Columbia Avenue, Bexley, Ohio.

Sec. 5123.18 R. C., uses the words “legal residence” in referring to the alleged mentally ill person in several paragraphs, and the words “residence” and “legal residence” are defined in §5123.01 R. C., to have the same meaning and legal purport as “legal settlement.” As defined in §5113.05 R. C., legal settlement “is acquired by residing in one county for a period of one year without receiving poor relief or relief from a private agency which maintains records of relief given.” And further, a “Settlement once acquired shall continue until acquired in another county or until a person has been continuously absent from Ohio for a period of one year or has acquired a legal residence in another state.”

The record presented to this court indicates at best that when Emily I. Hamilton went to Florida in December, 1958, she had no intention of remaining there permanently, and that most of her personal possessions are still in the Columbia Avenue, Bexley, Ohio, home; but at this time has indicated that she would like to return to Florida and reside and teach school in Miami.

Her testimony, and it was not controverted by the petitioner, indicated that no legal residence was ever established in Florida. It therefore follows that the only legal residence which Mrs. Emily I. Hamilton had was at 260 North Columbia Avenue, Bexley, Ohio; and she was therefore the proper person to sign the affidavit required to start the proceeding regarding the mental illness of the petitioner under the provisions of Chapter 5123 R. C.

Does the finding of the Florida court as to residence bind us and preclude us from deciding whether Emily I. Hamilton was a resident of Franklin County, Ohio, at the time of filing the affidavit required by §5123.18 R. C.? In syllabus 4 of Williams et al, v. North Carolina, 325 U. S. 226, it is stated:

“As to the truth or existence of a fact, like that of domicil, upon which depends the power to exert judicial authority, a State not a party to the exertion of such judicial authority in another State but seriously affected by it has a right, when asserting its own unquestioned authority, to ascertain the truth or existence of that crucial fact.”

If this were an adversary proceeding between the petitioner and Emily I. Hamilton the requirements of full faith and credit would bar her from attacking the divorce decree on judicial grounds since there was some evidence of participation by Emily I. Hamilton in the divorce proceeding. (See Sherrer v. Sherrer 334 U. S. 343.)

It should be noted that it is not Emily I. Hamilton who is questioning the establishment of a Florida residence, rather it is the state of Ohio through the superintendent of the Columbus State Hospital who is attempting to show this court the truth of the matter. Based on evidence presented to us we believe that Emily I. Hamilton was a resident of Franklin County, Ohio, at the time of the filing of the affidavit and the commitment to the Columbus State Hospital by the probate court must be recognized. The writ will be denied.

BRYANT, PJ, DUFFY and CRAWFORD, JJ, concur.


author: The Chancellor.

text:
    Arnold Leo v. Ashbel Green, receiver of the North River Construction Company.
    A person having a claim, which does not appear to he valid and meritorious, against an insolvent corporation in the hands of a receiver appointed by this court, will not be permitted to present it to the receiver for his consideration and action after the time limited by order of the court for such presenta■tion has expired, and especially is this so when it appears that the failure to present the claim in due time was not the consequence of misapprehension or want of actual notice, but the result of careless indifference or of intentional delay.
    On petition for leave to appeal from receiver’s disallowance of claim.

      Mr. David A. Storer, for the petitioner.

      Mr. John P. StocMon, for the receiver.
   The Chancellor.

The North River Construction Company, a corporation of this state, was adjudged by this court, in January, 1884, to be insolvent, and, in pursuance of the statute, Ashbel Green was appointed its receiver. On the 11th of March, in the same year, the chancellor ordered that all creditors of the company should present their claims to the receiver within four months from that date, proving the same to the receiver’s satisfaction, and, in default of such presentation and proof, should be barred from participating in any dividends from the assets of the company, and prescribed the notice which should be given of the order. The notice was duly given.

On the 7th of September, 1885, nearly fourteen months after the time limited for the presentation of claims had expired, the petitioner, Arnold Leo, presented-a demand for $12,500, with interest from July 1st, 1881, characterizing it money paid and advanced by me to the North River Construction Company.” The receiver was not able to trace such an indebtedness of the company upon its books, and he therefore immediately returned Mr. Leo’s paper with the written objections that it was not presented within due time and that its form did not sufficiently apprise him of its merits. He also notified Mr. Leo that the claim was disputed and rejected by him to the end that appeal might be taken to the chancellor.

On the 20th of July, 1888, the chancellor made a further order that all persons who had presented to the receiver claims, which the receiver had disallowed, should prosecute any appeal they might desire to take and bring the same to hearing before the first Monday in December of that year.

Notice of this order was given to the attorney of Mr. Leo in August and to Mr. Leo himself in September, of the same year.

No action was taken by Mr. Leo until December, 1891, when he called upon the receiver with reference to the claim, and was then explicitly informed as to the nature and effect of the orders and notices which have been above referred to. Thereafter, Mr. Leo did nothing until the latter part of September, 1893, when, as the receiver was about to make final distribution of the remnant of the assets of the company then in his hands among its stockholders, he caused a new attorney to serve a notification that he, Leo, intended to prosecute his claim, and that any distribution which would strip the receiver of funds to meet his recovery would be iqade at the receiver’s peril. Later, in October, 1893, the present petition was presented to the chancellor. The receiver has answered it, and the application of Mr. Leo is now heard upon the petition, answer, affidavits filed on each side and the record in the insolvency matter.

The answer exhibits the further facts that Arnold Leo & Company, a partnership, of which the petitioner is a member, was the owner of six hundred shares of the capital stock of the North River Construction Company, and, as such stockholder, was known to and recognized by the receiver. To this firm, as one of his eestuis que trustent, the receiver from time to time made reports of his progress in the administration of his trust'. On the 12th of January, 1885, and the 11th of January, 1886, he sent it reports which referred to the order to limit the presentation of claims of creditors. On March 15th, 1886, he sent it a report which specially stated that he rejected the claim of Arnold Leo, and that no action upon the rejection had been taken by Mr. Leo. On June 3d, 1888, he reported that he intended to ask the chancellor to limit the time within which creditors should appeal from his disallowance of their claims, and in a report dated December 6th, 1888, the order to limit appeals was copied at length.

It further is made to appear that the North River Construction Comirany was organized for the purpose of constructing the New York, West Shore and Buffalo Railway Company from Weehawken, in this state, to the city of Buffalo, a distance of four hundred and twenty-five miles, for which it was to be paid by the capital stock and bonds of that company; that its failure was caused by depreciation in the market value of those securities ; that at the time of its failure it had two hundred thousand three hundred and fifty shares of the capital stock of the railway company and also first mortgage bonds of that company of the par value of $10,000,000 and demand notes of the company for $600,000, all of which went to the receiver and constituted the principal part of the assets in his hands; that in June, 1884, a suit was commenced to foreclose the first mortgage upon the railway company’s property, which threatened the destruction of the principal assets of the construction company; that in the emergency the receiver applied to the court in which the foreclosure suit was pending and obtained leave to intervene, and then interposed technical defences for the purpose of gaining delay; that during such delay, to reconcile all interests and gain the active assistance, good will and co-operation of the stockholders of the construction company by securing for them the probability of a partial payment for their stock, he, in June, 1885, called a meeting of the larger creditors of the construction company, and represented to them the situation of affairs and the advantage which would ensue from a compromise of their claims to an amount which would admit of a dividend out of the assets .to the stockholders; that the result of such overture was that practically all the creditors agreed to accept one-half of their claims in full satisfaction of them; that later, in July of the same year, the banking-house of Drexel, Morgan & Company, of New York city, proposed to the holders of the first mortgage bonds of the railway company a scheme by which, upon a sale of the railway to the New York Central and Hudson River Railroad Company, fifty cents upon the dollar of their holdings would be paid; that the receiver of the construction company became a party in the negotiation which followed this proposal, and, with the co-operation of both creditors and stockholders of that company, effected a sale of the assets in his hands for $6,000,000 par value of first mortgage bonds of the then newly-organized West Shore Railroad Company, which bonds were guaranteed by the New York Central and Hudson River Railroad Company and sold for a fraction less' than par, and he was enabled, from the proceeds of his sale of those bonds, to pay the creditors of the construction company the full amount they had agreed to accept in satisfaction of their claims, and also pay the stockholders upwards of thirty-one per cent, of the par value of their stock; that, among other stockholders, he paid the firm of Arnold Leo & Company thirty-one per cent, of the par value of their six hundred shares of stock, to wit, $18,600, and that in absence of the compromise with the creditors, Arnold Leo & Company would not have been paid five per cent., to wit, $3,000, on their stock.

It further is made to appear that after Arnold Leo & Company had been paid this dividend upon their stock, and the assets in the receiver’s hands had been so far distributed that he retained only sufficient moneys to answer some unsettled contingent liabilities, they sold their interest in the stock standing in their name, and thereafter, when the receiver had adjusted those contingent liabilities and was about to make final distribution of what remained in his hands, and not till then, Mr. Leo, who had slept upon his claim for more than eight years, made the present application.

The claim itself now appears to rest upon this state of facts: It became necessary for the construction company, in order to prosecute its contract to build the New York, West Shore and Buffalo Railway Company’s road, to sell securities with which the railway company paid it, and, to accomplish such sale, it opened a subscription agreement which bound the subscribers to pay the construction company par and accrued interest for the amounts of the bonds set opposite their respective names, upon the following, among other, terms and conditions:

“Second. Ten per cent, shall be paid upon call to C. F. Woerishoffer, treasurer of the North River Construction Company, for which installment receipts, in due form, shall be given, and thereafter not more than ten per cent, shall be called at any one time. At least ten days’ notice shall be given of any call, subsequent to the first call. Default in the payment of any installment called, as herein provided, shall entitle the company, at its option, to forfeit the subscription and all installments previously paid.
“Third. Each subscriber, upon the payment of the entire amount subscribed by him, shall, in addition to the bonds, be entitled to fifty per cent, of the par value of his subscription in certificates representing the full-paid capital stock of said railway company.
“Mfth. After forty per cent, has been called in and paid, such subscriber may elect to surrender all his installment receipts, except one, and receive therefor thirty per cent, in said bonds, and he shall be entitled to receive bonds for each subsequent payment, upon the surrender of the installment receipts, and upon payment in full of his subscription he shall be entitled to the certificates provided for under section third.
“Sixth. The bonds subscribed for, under this agreement, will be deposited with the United States Trust Company for delivery to the subscribers hereto, under the terms hereinabove named, upon a surrender of their installment receipts. Interest at five per cent, per annum will be allowed on all installments paid, and will he adjusted as the bonds are delivered.”

The firm of Woerishoffer & Company, of which Charles E. Woerishoffer, the treasurer of the construction company, was a member, became a subscriber for $2,000)000 of the bonds, and with that firm Mr. Leo agreed that he would buy $125,000 of the bonds they were to have, to be paid for upon their calls of ten per cent., as provided in the subscription agreement. In pursuance of his agreement, on the 1st of July, 1881, he paid Woerishoffer & Company $12,500, the first ten per cent, called for, and they delivered to him four receipts, which the construction company had given to them, one for $500, two for $1,000 each and one for $10,000, numbered respectively 310, 341, 342 and 420, each of which was endorsed Woerishoffer & Co.,” and, except in amounts and numbers, was identical with the others, in this language:

“No. 310. The North River Construction Company,
“20 Nassau Street, Room 9,
“ New York, July 1,1881.
Received of Woerishoffer & Co. Five hundred Dollars, being payment of first installment of 10 per cent, due July 1st, 1881, on 85000 of 5 per cent. mortgage gold bonds, due in 1931, of tbe New York, West Shore and Buffalo Bailway Company, subscribed for by them, as per subscription agreement dated June, 1881.
“ Interest will be allowed hereon, at the rate of five per cent, per annum, from date hereof to day of issue of bonds.
“ This receipt must be surrendered to the Construction Company previous to delivery of the bonds.
“$500. J. E. Wobcesteb,
“Assistant treasurer “North River Construction Company.”

Mr. Leo thereafter failed to respond to calls made upon him by Woerishoffer & Company for additional payments, and Woerishoffer & Company, in turn, failed to respond to calls upon them by the construction company for the portion of their subscription which the receipts they delivered to Mr. Leo represented, and the construction company thereupon proceeded to forfeit that part of the subscription of Woerishoffer & Company. Mr. Leo does not pretend to have dealt with the construction company and does not show that the construction company had any knowledge of his dealings with Woerishoffer & Company. His transaction, as he states it in his petition and affidavit, was with Woerishoffer & Company alone, concerning a portion of the bonds which that firm had engaged to buy from the construction company. He states that he knew nothing of the terms of the agreement of bond subscription between Woerishoffer & Company and the construction company. If it were material that he should be held to knowledge of that agreement, the receipts which Woerishoffer & Company delivered to him appear to have distinctly notified him of its existence and to have put him upon inquiry concerning it. His $12,500 was paid to Woerishoffer & Company, and the terms in which the receipts are couched show that the money of Woerishoffer & Company went to the construction company. Mr. Leo did not pay any money to the construction company. It is true, Charles F. Woerishoffer was the treasurer of the construction company, but I fail to perceive that that fact changes the situation. Mr. Leo distinctly states that his purpose was to buy from Woerishoffer & Company a portion of the bonds subscribed for by them. His dealing with them, acceptance of receipts made out to them and complete ignorance of the construction company’s subscription agreement, make it plain that he had no purpose to contract with the construction company. Nor does he appear to have confused Charles E. Woerishoffer, treasurer, with Woerishoffer & Company. He appears to have fully comprehended the bargain that he made and the precise situation of the contracting parties. In view of this condition of affairs, it is not surprising that Mr. Leo failed to apprise the receiver of the particulars of his claim at its presentation, but chose rather to generalize it as money paid and advanced.

The mere statement of the facts which underlie this application must determine it.

It is apparent, at a glance, that the claim is without validity. No contractual relation whatever existed between Mr. Leo and the construction company. The construction company did not have his money. "His dealings were wholly with Woerishoffer & Company and his payment was to that firm.

But if Mr. Leo’s claim possessed merit, I am of opinion that his pertinacious disregard of the chancellor’s orders and the receiver’s notices has worked a forfeiture of all right to the court’s indulgence. It would establish a pernicious and troublesome precedent in the administration of the affairs of insolvent corporations, to grant his application. This is not the case of a creditor who, for want of actual notice or through misapprehension, has lost the opportunity to present his claim, and comes, before final distribution, and asks for relief from the bar of the court’s order, but the case of one whose attention has been repeatedly called to his right and duty, and who, with careless indifference or designed deliberation, has ignored every effort of the court and its proper officer to induce him to establish his claim. It is the case of one who has withheld his claim under circumstances which engender suspicion that he had a purpose to gain some advantage in so doing. I am not. unmindful that Mr. Leo attributes his tardy application to the neglect of a former attorney. Such a defence will not serve him. He is responsible for his attorney’s negligence (Wakeman v. Duchess of Rutland, 3 Ves. 233; Dillett v. Kemble, 10 C. E. Gr. 66; Mott v. Shreve, 10 C. E. Gr. 438); and, if that were not so, X think the mere fact that he, an intelligent principal, has suffered his attorney to delay the prosecution of a claim for $12,500 and interest, for eight years, is enough to conclusively establish his own culpable negligence.

I will deny the application, with costs.


text:
    Ralph A. Pullen v. John W. Pullen et al.
    In absence of express or implied statutory provision to the contrary, a divorce a wnculo matrimonii, for tbe'fault of either party, will bar dower.
    On motion upon petition to open decree and amend bill by striking out a party defendant.
    On the 28th of April, 1891, Ralph A. Pullen filed a bill in chancery for the partition of certain lands of which he and others were tenants in common. He and his wife, Catharine A. Pullen, were then living apart. The wife was made a party defendant to the suit, because of her inchoate right of dower in her husband’s undivided interest in the land. She answered the bill, claiming such right.
    While the partition suit was pending, Mrs. Pullen brought suit in this court against her husband for divorce a vinculo matrimonii, because of his willful, continued and obstinate desertion of her for three years and upwards.
    On the 14th of August, 1891, an interlocutory decree and order of reference was made in the partition suit, whereby, among other things, it was referred to a master to ascertain and report the interests of the respective "parties to the suit in the lands of which partition is sought.

      Pending the coming in of the master’s report, on the 28th of October, 1891, a final decree was made in the divorce suit, by which the bond of matrimony, between Mr. Pullen and his wife, was dissolved.
    Motion is now made to open the interlocutory decree in order that the complainant, by supplementary pleading, may set up the divorce, and thus raise the question whether or not the inchoate right of Catharine A. Pullen is extinguished, or amend his bill by striking her out as a party defendant.

      Mr. George O. Vanderbilt, for the motion.

      Mr. William Y. Johnson, contra.

   The Chancellor.

The vital question presented and argued is whether the divorce a vinoulo matrimonii bars all right of Catharine A. Pullen in the lands. I regard it as now settled that, in absence of express or implied statutory provision to the contrary, such a divorce, for the fault of either party, will bar dower. The reason is that it is essential to the estate that marriaget shall subsist at the death of the husband. A woman cannot 'have dower, who is not the wife of the man in whose lands she claims it, at the time of his death. Day v. West, 2 Edw. Ch. 592.

In Calame v. Calame, 9 C. E. Gr. 440, 444, Vice-Chancellor Dodd recognized the law as I have stated it. It is true, when that case was heard upon appeal (10 C. E. Gr. 548, 550) the chief justice (Beasley) said: It is not necessary to express any opinion on the question whether a decree for divorce a vinoulo matrimonii will have the effect in this state which is assumed in this contention. The point was settled the other way in a case receiving great consideration from the court of appeals in New York, the statute of that state being, perhaps, not substantially variant from our own. Wait v. Wait, 4 Comst. 95.” But, I find that Mr. Justice Gray, of the United States supreme court, in commenting upon the case of Wait v. Wait, in Barrett v. Failing, 111 U. S. 523, states that the ground of decision in that case was a provision in the statute of the State of New York, that in case of divorce, dissolving the marriage contract for the misconduct of the wife, she shall not be endowed,” which implied that the wife should retain her right of dower in case the divorce was not for her misconduct, but because of the misconduct of the husband. I do not find a similar statute in our state, nor any statutory language which will justify the same implication. I apprehend that the purpose of Chief-Justice Beasley was not to pronounce against the correctness of the assumption, in Calame v. Calame, that by divorce a vinculo matrimonii the right of dower is lost, but to call attention that the point was not to be, assumed without full consideration. His use of the word perhaps” quite clearly demonstrates that he did not pretend to have made a careful examination of the question.

In Barrett v. Failing, the question- was studied and the conclusion deliberately drawn, that the law is to be regarded as I have already stated it, to wit, that a valid divorce from the bond of matrimony, for the fault of either party, bars the wife’s right of dower, unless the dower right be expressly or impliedly preserved by statute. And so, in American Legion of Honor v. Smith, 18 Stew. Eq. 466, 469, Vice-Chancellor Van Fleet states it.

The parties interested having been fully heard upon the question determined, I will permit the complainant to amend his bill by striking out Catharine A. Pullen as a party to it.


author: The 'Chancellor.

text:
    Ira M. Conant and Edward F. Anderson, surviving trustees under the fifth clause of the will of George W. Bassett, deceased, v. Fannie Doremus Bassett, Kate E. Anderson and Frances E. Morrill.
    A testator gave property, which he held by lease for years, to the executors of his will in trust to manage the same and collect the income thereof, and, after making designated payments, to divide the net income semi-annually, share and share alike, between his children, his son G. and his daughters F. and K., so long as either F. or K. should live. — Held, that G. took a vested right to one-third of the net income of the leasehold property until the survivor of his sisters shall die, and that, upon his death, that right passed by his will.
    On bill for construction of will, answers, replications and admission as to facts.
    George W. Bassett, of Orange, in this state, died on the 28th of April, 1887, leaving a will, in and by which, among other ■ things, he did provide as follows:

      “Fifth. I give, devise, and bequeath unto Ira M. Conant, of Bridgewater, Massachusetts, to my son George F. Bassett and to my son-in-law Edward F. Anderson, and to the survivor of them and to their successors, all my right, title, interest and leasehold estate in and to four contiguous lots, pieces or parcels of land, with the appurtenances thereto belonging, and the buildings thereon erected, situate, lying and being in the city of New York, and known as numbers Fifty-two and Fifty-four Park Place and Forty-seven and Forty-nine Barclay Street in said city; being the same premises mentioned and described in certain leases made to me by ‘ The Trustees of Columbia College in the City of New York,’ together with all rights to renewals of said leases, and every right and interest connected therewith, in trust nevertheless to and for the following purposes:
    “I. That they take possession of said property, manage and control the same, collect and receive the rents and income therefrom, pay taxes, ground rents, premiums of insurance and all other expenses connected with the management of the same; keeping the buildings thereon insured in solvent insurance companies, and rebuilding in case of the destruction of said buildings in whole or in part, using for that purpose any funds which may come to their hands as trustees or otherwise, belonging to my estate; also keeping the said leases renewed, and doing whatever may be necessary in order to preserve and continue the term and rights granted to me by the said leases; and generally to use, manage and control the said property according to their best judgment and discretion, for the interests of my estate, so long as my daughters hereinafter named or either of them shall live.

      “ II. That the net income derived from said premises (after the payment of the mortgage thereon as hereinafter directed) be divided and distributed semiannually, share and share alike, between my three children, namely: my son George F. Bassett, and my daughters Frances C. Morrill, wife of Benjamin W. Morrill, and Kate E. Anderson, wife of Edward F. Anderson, for and during the continuance of the lives of the said Frances C. Morrill and Kate E. Anderson, and so long as either of them shall be living; and it is my wish, and I will and direct, that my interest in said property be not sold or disposed of until after the death of both of my said daughters.
    “ III. I direct my trustees (who are also hereinafter constituted my executors) to pay off and discharge, as soon as may be after my decease, the mortgage for Forty thousand Dollars ($40,000) upon my said leasehold property in Barclay Street and Park Place; and for the purpose of paying said mortgage, they are to use any moneys which may be derived from my estate after setting apart and making due provision for the payment of the legacies hereby bequeathed, using for that purpose, if necessary, the net income which may be derived from the said premises. But the payment of the legacies herein bequeathed shall first be made, or the amounts thereof set apart for that purpose before any incumbrance shall be paid off and before any similar expenditure shall be made.”

      “Eighth. All the rest, residue and remainder of my estate and property, both real and personal, of which I may die seized or possessed, I give, devise and bequeath to my three children, Frances O. Morrill, George F. Bassett and Kate E. Anderson, to be divided between them equally, share and share alike; and in case of the previous death of either of them, the issue of my said children or the descendant of any deceased issue shall take the parent’s share, and if either or any of my said children shall not be living at my decease, and shall then have no lawful issue them surviving, then the share of such child shall go to my surviving child or children and to the surviving children of any deceased child; the surviving children of the deceased child in every case, taking the share which would have gone to his, her or their parent if living.”

      “After the death of my said daughters, my said trustees or their successors may, in their discretion, sell the said leasehold premises above mentioned, and distribute the proceeds thereof as a part of my residuary estate in the manner above directed.”

      At the testator’s death his three children were all living.
    Subsequently, on the 21st day of May, 1891, the son, George F. Bassett, of East Orange, died, without leaving issue, having "made his last will, by which he devised and bequeathed his entire estate to his widow, Fannie Doremus Bassett, and constituted her the sole executrix thereof.
    The trustees now ask direction as to whom the share of the net income from the leasehold property, designed for George F. Bassett, becoming payable after his death, shall be paid.
    By their respective answers, the defendants, Fannie Doremus Bassett, on the one side, and Kate E. Anderson and Frances C. Morrill, on the other side, claim it.
    ■ Mr. Edward M. Colie, for the complainants.

      Mr. Frederic W. Ward, for Fannie Doremus Bassett.

      Mr. Spencer Weart, for Frances C. Morrill.

      Mr. Francis J. Swayze, for Kate E. Anderson.
   The 'Chancellor.

The leasehold interest, from which the income in question springs, is for years and is deemed personal estate. 1 Wms. Ex. 674. It is observed that the net income is not made payable to a class, generally the testator’s children, so that, upon the death of one, the survivors will take (Crane v. Bolles, 4 Dick. Ch. Rep. 373, 384), but to his three children, nominatim, in defined proportions, so as to clearly import distinctness of interest among the objects of the gift. Hawk. Wills 112; Moore's Executors v. Trustees of M. E. Church.at Tuckerton, 12 C. E. Gr. 47, 50 ; Post v. Rivers, 13 Stew. Eq. 21. The gift of the portions of the income is not made subject to a condition precedent of any kind, and hence the portions given are absolute and vested. Hawk. Wills 223. No provision is made for the disposition of any share in case of the death of its donee during the continuance of the trust, hence the quantum of the gift to each donee is one-third of the net income, continuing until the death of both the testator’s daughters. The gift of the income does not carry with it the whole or portions of the fund or corpus from which it is to arise, because the time of enjoyment is not unlimited, but expressly confined to the period of two lives in being (Parker’s Executors v. Moore, 10 C. E. Gr. 228, 234; Hawk. Wills 123), hence it is neither expressly nor impliedly controlled by any provisions of the will which concern the ultimate disposition of the corpus.

I am therefore of opinion that, at the death of George F. Bassett, his right to one-third of the net income, payable periodically, as it shall arise, so long as either of his sisters shall live, vested in him and could be disposed of by him by will, and hence that his widow, who is the executrix of his will and the sole legatee thereunder, will take it. The complainants will be so directed.

The gift of the income, as I have in substance, said, is not so interwoven with the disposition of the corpus, from which it springs, as to be at all dependent upon that disposition. Its bearing upon the disposition of the corpus may, however, be a matter for consideration at the proper time. Particular provision for transmission of the corpus is made in the eighth paragraph of the will. The construction of that paragraph has been argued by counsel, but, as the present emergency does not require a solution of the questions suggested in that argument, and the bill does not ask such solution, and it is obvious, upon perusal of the eighth paragraph, that when the time for the disposition of the corpus arrives, parties not now before the court, to be bound by its decision, will be necessary to a complete and beneficial adjudication, I refrain now from any expression of opinion with reference to rights in the corpus. Traphagen v. Levy, 18 Stew. Eq. 448, 451; Bonnell v. Bonnell, 2 Dick. Ch. Rep. 540, 543.


text:
    Anna M. Forrest, administratrix of the estate of Samuel Forrest, deceased, v. Rodman M. Price et al.
    1. It is no excuse for contempt of an order of court that the order is founded on error of law or fact. The error must be questioned by direct proceedings to review the order, not by disobedience.
    2. The contemner of an order of a court, however, may show, in defence, that the court was without jurisdiction to make the order disobeyed, and hence that there was, in legal effect, no order.
    8. Jurisdiction is the right to adjudicate concerning the subject-matter in a given case, to constitute which it is essential that the court have cognizance of the class of cases to which the one adjudged belongs; that the proper parties be before the court, and that the point decided, in substance and effect, be within the issue made by the pleadings.
    4. An order that the court of chancery, in a proceeding in aid of an unsatisfied judgment at law, which contemplates the conservation, pending suit, of moneys which, by law, are exempt from application to the liquidation of the judgment debtor’s obligations, or which requires an act which, if done, would contravene public policy and be void, though erroneous, is not without the court’s jurisdiction.
    5. When the government of the United States restored to P., a former purser in the navy, his private moneys, which his successor in office, without authority of the United States, borrowed from P. for the use of the government, but which, in fact, the successor did not apply to that use, those moneys are not clothed with any sacredness which exempts them from the creditors of P.
    6. An order which forbade P. from endorsing drafts delivered to him by the United States treasury for such moneys, for a few days, pending hearing on an order to show cause why they should not be endorsed to a receiver, does not contravene public policy by delaying the fiscal operations of the government.
    7. An assignment of a claim against the United States, which has been established and ascertained, in obedience to an order of the court of chancery in a proceeding in aid of an unsatisfied judgment at law, obtained and prosecuted in good faith, is not such an assignment as is forbidden and made a nullity by the three thousand four hundred and seventy-seventh section of the Revised Statutes of the United States.

      8. The exercise of a court’s power to punish for contempt has a twofoldi aspect — jirsi, the proper punishment of the guilty party for his disrespect of the court or its order; and, second, to compel performance of some act ocduty required of him by the court, which he refuses to perform. In the-former ease the court, having regard to the gravity of the offence, will itself determine the nature and extent of the punishment, and in the latter case the party refusing to obey should be fined and imprisoned until he performs the • acts required of him or shows that it is not within his power to do so.
    On motion to punish for contempt.
    The bill in this cause was filed in June, 1874, in aid of an unsatisfied judgment, recovered June 2d, 1857, by Samuel Forrest, deceased, against Rodman M. Price, of the county of Bergen, in the supreme court of this state, for $17,000 debt and $78.04 costs of suit. ISTo property out of which the judgment could be satisfied was then discovered, and the suit was suffered to lie dormant until the 8th of August, 1892, when the complainant, by her petition, represented that an alias writ of fieri facias upon the judgment had been returned unsatisfied on the 4th of August, 1892; that the judgment remained wholly unpaid; that $45,00CHwas about to be paid the defendant from.> the United States treasury in virtue of an act of congress in his-behalf passed, and that he did not intend to apply such moneys - towards the satisfaction of her judgment. The petition prayed, that an injunction might issue to restrain the defendant from-collecting those moneys for his own use, and that a receiver-might be appointed to whom the moneys might be transferred, by the defendant.
    Upon the presentation of the petition, an order was made on-the 8th -of August, 1892, which required the defendant to show cause before the chancellor, on the 12th of September then next,, why an injunction should not issue and a receiver be appointed,, according to the prayer of the petition, in which was incorporated this restraining clause:
    “And that, in the meanwhile, the said Bodman M. Price he and he hereby is enjoined and restrained from making any endorsement of any draft or other negotiable or other paper or security which shall he made or delivered to him by the United States of America or any officer of the treasury department thereof, or which shall in anywise come to his possession or control from it or such officer mediately or immediately, and which shall be expressed to be paid to bis order, and from transferring, assigning, delivering or in any way passing the said draft or paper or security or the right thereto, or to auy money to be derived therefrom or thereby to any person whatever except under the order of this court.”
    Upon the return of the order to show cause, the defendant appeared by counsel, and, at his instance, adjournment of the hearing was had with leave to take depositions, the restraining clause of the order being continued in force.
    After service upon him of the order to show cause, and while its restraint remained in force, the defendant received four drafts from the United States treasury department respectively for $20,000, $13,500, $9,000 and $2,704.08, aggregating in amount $45,204.08, and on the 5th day of September in the same year, in the city of Washington, endorsed the drafts for $13,500-and $2,704.08, and handed the former of them to his attorneys there and drew the money upon the latter of them for his own use. On the 3d of October in the same year, during an adjournment of the hearing of the order to show cause, which he had obtained after appearing and filing an answer to the petition of the complainant, in the city of New York, he endorsed the two remaining drafts and drew the moneys ordered by them to he paid. By order made on the 10th of October, 1892, the chancellor, not having yet been apprised of the endorsement and collection of the drafts, appointed a receiver of the property and things in action belonging or due to the defendant Price, and directed the defendant to endorse and transfer to the receiver the drafts in question. The drafts having been previously disposed of, the direction of this order was, of course, not complied with.
    Upon the defendant’s action being duly represented to the chancellor, on the 18th of October, an attachment was issued against him as for contempt of court. He left the State of New Jersey and was not served with the writ until July, 1893. Later he was examined upon interrogatories in the matter of contempt, and in that examination admitted, among other things, that the order to show cause bad been served upon him; that he had read it and handed it to his counsel; that afterwards, on the 5th of September, 1892, in the city of Washington, he received from the assistant treasurer of the United States the four drafts already referred to, his claim having been allowed and a warrant having been duly drawn for them, each of which drafts was payable “ to the order of Rodman M. Price, late purser U. S. N.” and receipted for them; that on the same day he endorsed the draft for $2,704.08, “ Rodman M. Price, late purser U. S. N.,” and received the money therefor; that on the same day he endorsed the draft for $13,500 and delivered it to his attorneys in Washington, in payment for services which they had rendered him in and about procuring the money from the government, and that, on the 3d of October following, he endorsed the two remaining drafts in the city of New York, and received the moneys for them.
    He admits that his disregard of the restraining order was deliberate, and essays to excuse it in his answer to the thirteenth interrogatory. To that interrogatory he, among other things, replies:
    “And this defendant, in further answering in regard to his claim against the United States government herein referred to, saith that congress passed an act for the relief of Eodman M. Price, which was approved by the president, February 23d, 1891, and of which the following is a copy:
    “ ‘An act for the relief of Eodman M. Price.
    “ ‘Be it enacted by the Senate and Souse of BepresentaMves of the United States of America in Congress assembled, That the Secretary of the Treasury of the United States be and he is hereby authorized and directed to adjust, upon principles of equity and justice, the accounts of Eodman M. Price, late Purser of the United States Navy and acting Navy Agent at San Francisco, California, crediting him with the sum paid over to and receipted for by his successor, A. M. Yan Nostrand, acting Purser, January fourteen, eighteen hundred and fifty, and pay to said Eodman M. Price, or his heirs, out of any money in the treasury not otherwise appropriated, any sum that may be found due to him upon such adjustment.
    “ ‘Approved February 23,1891/
    “And under which the Secretary of the Treasury did cause to be adjusted, upon principles of equity and justice, the accounts of defendant as late officer, to wit, a purser in the navy of the United States.”

      Then, after stating at length the account as adjusted, by which it appears that the balance due to him was $76,204.08, he continues:
    “That about the sixth of December, 1848, this defendant was assigned to duty as purser and fiscal agent of the Government for the Navy Department of the United States. On the first of January, 1850, he was relieved from duty and ordered to report to the Secretary of the Navy, in Washington, D. C.; that in pursuance of said order of recall he turned over the public moneys and property to his successor, on or about December thirty-first, 1849, and on January fourteenth, 1850, advanced to his successor, from his private funds, the sum of §75,000, to be disbursed by his successor for the benefit of the United States. Thus, a controversy arose as to whether the government of the United States was responsible for private funds which had been turned over to its officer.”
    He then referred to an opinion of Caleb Cushing, attorney-general of the United States, dated March 12th, 1854, in which is quoted a letter from the secretary of the navy to the defendant, instructing him concerning special duties then required of him, among which was the procurement of funds, for use at the station to which he was sent, by bills drawn upon the navy department in Washington, and in which the attorney-general states that Van Nostrand, who succeeded the defendant as purser, had been the defendant’s clerk and was lawfully appointed his successor by the commodore commanding at the California-station, and also that the defendant, with another, became security to the government in a bond in the penal sum of $30,000, conditioned for Van Nostrand’s faithful performance of his duties'as such purser. It appears in the case, further, that Van Nostrand afterwards converted to his own use not only government moneys, but also the $75,000 which the defendant had placed in his hands. The opinion of the attorney-general concludes with the determination that as the defendant’s advance of his private funds to his successor was unauthorized by the government, it could not be charged against the United States. After the rendition of the opinion the accounts of the defendant remained unadjusted until after the approval of the act of 1891, when, in obedience to that act, the advance of $75,000 to Van Nostrand, for the use of the government, was credited him, and in August, 1892, the balance in his favor was ascertained to be and allowed at $76,204.08, or $1,204.08 more than the $75,000 advanced. This excess appears to have been made up by allowances for mileage. Of the balance thus found, $30,000 or thereabouts has been withheld to answer the defendant’s liability on Van Ebstrand’s bond, and the remainder, $45,204.08, has been paid as aforesaid by the four drafts.
    To properly understand the position now taken by the defendant, it is necessary to call attention to the three thousand four hundred and seventy-seventh section of the Revised Statutes of the United States, which is in this language:
    “All transfers and assignments made of any claim upon the United States, or of any part or share thereof or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders or other authorities for receiving payment of any such claim, or any part or share thereof, shall be absolutely null and void unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due and the issuing of a warrant for the payment thereof. Such transfers, assignments and powers of attorney must recite the warrant for payment and must be acknowledged by the person malting them, before an officer having authority to take acknowledgments of deeds, and shall be certified by the officer; and it must appear by the certificate that the officer, at the time of the acknowledgment, read and fully explained the transfer, assignment or warrant of attorney to the person acknowledging the same.”
    Continuing bis answer to the thirteenth interrogatory, the defendant says:
    “This defendant further saith that, believing he was entitled personally to receive, under the terms of said act of February 23d, 1891, the money appropriated for his relief, and that it was his right and duly to assist in adjusting and closing his accounts according to the requirements of the government, and believing that it was not within the province or jurisdiction of the honorable chancellor of the State of New Jersey to intervene or divert from its proper channel money appropriated by the act of congress, if so intended, or to interfere between the adjustment of the accounts of this defendant as late officer of the United States navy, with the government of the United States and the payment, and without any intention of disrespect to the chancellor, this defendant did endorse his name and rank upon said drafts, being payable to Eodman M. Price, late purser in the United States navy, upon the back of said several drafts, as hereinbefore stated, which this defendant believed he had a right to do, and which this defendant most respectfully submits was not within the jurisdiction of the honorable chancellor of the State of New Jersey to restrain or prohibit him from doing; that, unless said endorsement was made, inconvenience and annoyance and impediments would have been drawn in the way of the fiscal operations of the United States” &c.
    After the interrogatories were answered, the United States government having abandoned the prosecution of Van Nostrand’s bond, and the defendant Price having applied for payment of the moneys withheld to answer any recovery that might be had on the bond, the chancellor, after hearing the parties, on the 21st of December, 1893, made further order that the defendant Price do forthwith make and deliver to the secretary of the treasury of the United States his written consent and request that the sum remaining unpaid to him be'paid to the receiver, and, among other rights and properties, to assign such receiver all his right, title and interest in those moneys. This order the defendant also refuses to obey, and, in justification of such refusal, offers the record of a proceeding instituted by the receiver appointed herein, in the supreme court of the District of Columbia, to aid him in reaching the $30;000 remaining in the United States treasury, by which it appears that the receiver has obtained an injunction in that court against him, which forbids him from assigning any warrants or drafts for the whole or part of said moneys.
    Motion is now made to punish the defendant for contempt in his disobedience of the three orders of the court above specified, to wit, the order of August 8th, 1892, which forbade the endorsement of the four drafts, the order of October 10th, 1892, which directed the transfer of the drafts to the receiver, and the order of December 21st, 1893, which required the defendant to request and consent to the payment of the $30,000 to the receiver and to assign those moneys to the receiver.

      Messrs. Cortlandt & JR. Wayne Parker, for the complainant.

      Mr. Joseph D. JBedle, for the defendant Rodman M. Price.
   The Chancellor.

The proceeding in which the orders contemned were made is designed to quickly discover and secure assets of a judgment debtor which cannot be reached by execution, and among them moneys due to the judgment debtor from another or others. When it is made to appear that there are such moneys, the statute expressly authorizes the court of chancery to restrain the debtor from transferring them and to require him to assign and deliver them to a receiver. Rev. p. 121.

It is not controverted that when the court took action in the present matter, by the orders in question, the defendant Price had become .entitled to moneys from the United States government. The act of congress had established his claim and the proper accounting officers had ascertained it. It remained only for the defendant to receipt for the moneys and obtain possession of them. They were in substance his property. Goreley v. Butler, 147 Mass. 8, 10; affirmed by the United States Supreme Court, 146 U. S. 303.

It was after the sum due to defendant was ascertained that the court, by its order, forbade the^defendant to endorse or transfer any drafts that might be delivered to him in payment of his property, and to assign to its receiver all moneys that remained undrawn from the- United States treasury.

It is no excuse in a proceeding for contempt that the orders contemned are erroneous in law. The method of correcting such error is by appeal, not by disobedience. When a person is proceeded against for disobedience to an order or judgment, he cannot allege in defence that, the court erred in that order or judgment. To be successful he must go further and make out that there was, in legal effect, no order, by showing that the court had no right to judge between the parties upon the subject People v. Sturtevant, 9 N. Y. 263, 266; Una v. Dodd, 12 Stew. Eq. 173, 180; S. C. on appeal, 13 Stew. Eq. 672, 706. Recognizing this well-established principle, the defendant denies the jurisdiction of the court to make the orders here in question, upon three grounds — -first, because the fund is a governmental bounty to him, designed for his personal maintenance and comfort, and therefore is not liable to application to the satisfaction of the judgment of the complainant, however meritorious it may be; second, because the restraint of the endorsement of the .governmental drafts tended to interfere with and delay the fiscal •operations of the government; and, third, because the assignment •of the moneys to a receiver, as contemplated by the orders of ■October 10th, 1892, and December 21st, 1893, would contravene the letter and policy of the law enacted in the three thousand four hundred and seventy-seventh section of the Revised Statutes of the United States and be a nullity.

In Munday v. Vail, 5 Vr. 418, 422, Chief-Justice Beasley defined jurisdiction to be the right to adjudicate the subject-matter in a given case, to constitute which it is essential that the court must have cognizance of the class of cases to which the one adjudged belongs; that the proper parties shall be before the •court, and that the point decided must, in substance and effect, be within the issue made by the pleadings. Testing the present case by the definition thus given, we first ascertain that its subject-matter is the application of the defendant’s established and .ascertained property in possession of the United States to the •satisfaction of the complainant’s judgment. That this court has •cognizance of this class of cases is not disputed. The defendant is regularly before the court, and the points to be decided are clearly within the issues presented by the pleadings. To urge that the particular money in question is exempt from the application desired, is to present a defence upon the merits of the case, .and to object that the temporary restraint of the-endorsement of •drafts will hinder and delay the fiscal operations of the United States, is to offer a reason why the court should not continue its temporary restraint, and so the insistment that, under the section •of the United States Revised Statutes which has been referred to, the assignment to a receiver would be a nullity, may be a reason why the court should not order it to be made. None of these matters, however, go to the court’s jurisdiction — they are defences properly belonging in the cause which the court has power to adjudicate upon. If the court err in that adjudication, the remedy is by appeal.

Confesión is avoided by bearing in mind that this suit is not a proceeding against the United States nor directly against a fund in its possession, but a proceeding in personam against the defendant Price.

But, assuming that the contentions of the defendant properly question the court’s jurisdiction, let us examine their merits.

Uo tenable ground upon which the first can be rested has been suggested in behalf of the defendant. His connection with the United States navy was severed some forty or more years ago. It does not appear that he now owes the government any duty, for which this fend is designed to maintain him. The case bears no resemblance to the unearned half pay of a retired officer, which is protected because of the service he may be called upon to render. Schwenk v. Wyckoff, 1 Dick. Ch. Rep. 560. I apprehend that a claim actually established, so that it now is property of the claimant, even though it spring from pure bounty, is not, in absence of express legislative provision to the contrary, exempt from the claimant’s debts. The act for the relief of the defendant does not intimate that the provision it makes is a sacred bounty.

But it affirmatively appears that the money, of which the statute authorizes payment, though not a legal claim, is not pure governmental bounty.

The provision in the act for the relief of the defendant Price, that payment should be made to him “ or his heirs,” has been urged as indicative of the legislative intention that the payment was not intended to benefit creditors. I do not so understand the act. The expression or his heirs ” was undoubtedly a provision against his death before the day of payment, and there can be no substantial doubt that it is used in the sense of personal representatives, the thing dealt with being personalty, and appears in the act to secure the moneys to his estate in the event of his death before they are paid.

The direction of the statute is to credit the defendant with a sum of money which he, many years ago, loaned to an officer and agent of the government for the use of the United States, and which that officer received in his official capacity for the purposes of the government. That officer was the successor of the defendant in a mission in which the defendant had been specially charged with the duty of going into a new and unsettled country, at a time when the inhabitants, as history records, had become mad in speculations, to establish a credit for the government. The method of establishing that credit, it is true, was prescribed, but it was difficult to literally follow the requirements of the prescription. Exigencies demanded that moneys .should be had. Of necessity, the government officials, five thousand miles, in course of usual travel, from home, were obliged to exercise some discretion. It was in this situation that the defendant Price advanced to his successor $75,000 of his private moneys for the use of the United States. The receipt of such a loan for the government was beyond the scope of that successor’s authority, and the moneys never having, in fact, been applied to the use of the government, the receipt of them was not ratified or recognized, and hence the defendant was subjected to a loss.

After many years, congress reviewed the transaction, and, recognizing in it a moral obligation upon the United States, directed that credit be made to the defendant for the amount of his advance. The environments of the whole situation, when the loan to "Van Nostrand was made, evinced to congress an appropriateness in the transaction and admitted of the advance being made in good faith, for the benefit and convenience of the United States. That it was made in good faith does not appear to have been doubted. The congressional proceedings show that it was upon consideration of these facts that the burden of the loss, without interest, was thrown by congress upon the public treasury. The statute was designed to restore to the defendant his property, which, in good faith, he had entrusted to an officer of the United States for the benefit of his principal.

I do not find in this situation even the bounty of a grateful government, partaking of the character of a pension or reward for a meritorious deed, but simply the restitution of property which had once belonged to the defendant, as assets for the liquidation of his pecuniary obligations; and I fail to understand how, upon its restoration to the defendant, it can be held to assume a new character.

Upon the second insistment, it is not perceived how the restraint of the endorsements of any drafts which should be delivered to the defendant pending the return day of the order to show cause, dated August 8th, 1892, would have materially interfered with the fiscal operations of the government. The restraint operated upon the defendant, not upon the government. It substantially forbade him to draw the money upon the drafts, leaving the government to pursue such course in the event of his failure to draw, that its regulations or practice permitted. Besides, the restraint was limited to a short day, when the defendant would be heard upon the question whether a receiver should be appointed. That delay, in point of fact, proved to be exactly one week from the delivery of the drafts. It has not been suggested how such a delay could operate prejudicially to the public service. I am not referred to any law, rules, regulations or policy of the governmental departments which show that such a delay, or kindred delays, can so operate. That it did not infringe governmental regulations amply appears by the fact that two of the four drafts were not endorsed and presented by the defendant for payment until the 3d of October, and were then paid, so far as appears, without objection.

It is unnecessary, under this state of facts, to discuss the question whether this court would have power to make an order which would directly or indirectly inconvenience and impede the fiscal operations of the United States. The order in question does not appear to have been of that character.

The third insistment of the defendant that an assignment of moneys in the United States treasury, as directed by the orders of October 10th, 1892, and December 21st, 1893, to the receiver, would contravene the policy of the law of the United States, and that, therefore, the orders were not within the jurisdiction of this court, remains to be considered. Upon this insistment the greatest stress had been laid. It is to be observed that the section of the Revised Statutes which is referred to declares that all assignments of claims upon the United States shall be absolutely null and void unless they are freely made after, the allowance of the claim, the ascertainment of the amount due and the issuance of a warrant for its payment. This section was taken from a statute of 1853, which was entitled “An act to prevent frauds upon the treasury of the United Stales.” The purpose of congress, in its enactment, inferentially was to protect the government from the necessity of dealing with those who were not directly and originally concerned in the claim — that is, with strangers to it whose numbers and possibly merely speculative interests in it might embarrass its speedy and just allowance or denial. Spofford v. Kirk, 97 U. S. 484; Goodman v. Niblack, 102 U. S. 556; Bailey v. United, States, 109 U. S. 432; Freedman’s Savings and Trust Co. v. Shepherd, 127 U. S. 494.

Viewed in the light of a protection to the government, it has been held that the statute is not to be interpreted according to the literal acceptation of the words it uses. In the case of Erwin v. United States, 97 U. S. 392, it was ruled that the statute applied to cases of voluntary assignments of demands against the government and did not embrace cases where the title was transferred by operation of law, such as the passing-of claims to heirs, devisees or assignees in bankruptcy, and, upon the same reasoning, in Goodman v. Niblack, supra, it was. adjudged that it did not extend to a voluntary assignment for the benefit of creditors, and in Bailey v. United States, supra, it "was held that the officers of the government might safely pay according to an unrevoked power of attorney if they saw fit to do so. So a partnership agreement to carry out a governmental contract, held by one of the partners, which subjected the moneys earned from the government under.the contract to the rights of other partners, was not regarded as within the policy of the act. Hobbs v. McLean, 117 U. S. 567.

It is not perceived that the assignment and consent to payment to the receiver in the present case differs in principle from an assignment to an assignee in bankruptcy, or to an assignee under a voluntary assignment for the benefit of creditors. The reason underlying the adjudications which exclude those cases from the operation of the statute is stated by Mr. Justice Miller, in Goodman v. Niblack, in this language, “that there can be no purpose in such cases to harass the government by multiplying the number of persons with whom it has to deal, nor any danger of enlisting improper influences in advocacy of the claim ; that in such cases the exigencies of the party who held the claim justified and required the transfer that was made.”

This reasoning is not a whit less pertinent in its application to .the present receivership than in its application to either of the assignees adjudicated upon. The receiver here is actuated, in the performance of his trust, by the identical motives and desires which actuate assignees in bankruptcy and under voluntary assignments for creditors.

I am therefore of opinion that the assignment which was required from the defendant Price was not within the inhibition of the United States law.

In reviewing the disobedience of the defendant, I am strongly impressed that the objections now interposed are mere subterfuges urged to secure his escape from punishment for a deliberate defiance of the court’s authority.

It is remembered that, when the order of August 8th, 1892, forbidding the endorsement of drafts, was first served upon the defendant, the drafts were not in his possession, and that, with the plain command of that order before him, he went to Washington and there obtained the drafts, and upon the same day, although it was only a week before the time fixed for hearing in this court, he deliberately endorsed two of the drafts. Then holding the two remaining drafts until after he had procured an adjournment of the hearing upon the order to show cause, upon terms which continued the restraint upon him, he endorsed those two remaining drafts, obtained the money upon them and departed from the state so that the court’s process could not be served upon him, and practically remained without the reach of that process for fully nine months. Furthermore, after he was served with the writ of attachment and examined upon interrogatories, he refused to assign to the receiver or to consent to the receiver’s having the moneys remaining in the United States treasury. These circumstances, with other surroundings of his disobedience, convince me that his intention was not to surrender his moneys to the court’s receiver, and if, in carrying out that intention, it was necessary to disobey the court’s order, he would do so. Such intention carried into effect is, without question, a punishable contempt. State v. Trumbull, 1 South. 157; Fraas v. Barlement, 10 C. E. Gr. 84; Una v. Dodd, 13 Stew. Eq. 672, 719. The exercise of the court’s power to punish has a twofold aspect — -first, the proper punishment of the guilty party for his disrespect of the court or its order, and second, to compel performance of some act or duty required of him by the court, which he refuses to perform. In re Chiles, 22 Wall. 157; Stimpson v. Putnam, 41 Vt. 238. In the former case, the court, having regard to the gravity of the offence, must itself determine the nature and extent of the punishment, and in the latter case, the party refusing to obey should be fined and imprisoned until he performs the acts required of him, or shows that it is not in his power to do so. Our Chancery act (Rev. p. 123 § 103) is in harmony with this general principle. It provides that where a person shall be adjudged to be in contempt, before be is released or discharged, he shall pay to the clerk in chancery, for the use of the state, a sum not exceeding $50 as a fine for the contempt, and, being in court on process of contempt or otherwise, shall stand committed and remain in close custody until the court’s order shall be obeyed and until the fine imposed, with the costs, be fully paid. By infraction of the court’s order of August 8th, 1892, the defendant has possessed himself of $31,704.08 in moneys. It is within his power to make amends for his disobedience to the extent of paying those moneys to the receiver appointed herein. It is also within his power to obey the order of December 21st, 1893, but I assume it is not within his power to restore the draft for $13,500 or the moneys which it called for. I do not forget the injunction of the supreme court of the District of Columbia. It does not forbid the defendant to request the United States authorities to pay the moneys to the receiver and to assent to such payment. Such an act may be of great value to the receiver, for it will fully protect the treasury officials (Bailey v. United States, supra), and when the object of the injunction is considered it is conspicuous that its intent and meaning is not to prevent an assignment to the receiver, but, on the contrary, to protect him from assignments which may render it impossible for him hereafter to secure the money.

I will make this disposition of this matter: I will fine the defendant Rodman M. Price, for his contempt, the sum of $50, to be paid to the clerk in chancery for the use of the state, and will order him to pay the $31,704.08 above mentioned, within five days from the service upon him of a copy of the order or decree hereon, and order that unless the fine be paid to the clerk, and the said moneys be paid to the receiver, and the directions of the order of December 21st, 1893, be specifically complied with, and the costs of these proceedings in contempt be paid within five days from the service of such order, that the defendant shall be committed to the common jail of the county of Bergen, there to remain in close custody until he shall make said payments and comply with said order of the 21st of December, 1893, unless the court shall deem it proper, for good reason shown, to sooner discharge him.