author: Mr. Justice Scanlan

text:
    People of State of Illinois, Defendant in Error, v. Harrison Parker, Plaintiff in Error.
    Gen. No. 43,372.

      Opinion filed February 14, 1946.
    Released for publication February 26, 1946.
    Arthur Frankel, of Chicago, for plaintiff in error.
    William J. Tuohy, State’s Attorney, for defendant in error; Jacob Shamberg, Gordon B. Nash, John T. Gallagher and George B. Duggan, Assistants State’s Attorneys, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

This writ of error seeks to review two separate judgment orders. In each Harrison Parker, plaintiff in error, was found guilty of a direct contempt of the trial court, and the punishment imposed was ninety days in the county jail.

Both judgment orders were entered in a suit wherein plaintiff in error (hereinafter sometimes called Parker), on December 8, 1943, sued Jacob Shamberg for slander in saying of him, “You are a blackmailer.” One of the defenses interposed was that “the words complained of are true.” After Parker had been granted a change of venue from Judges Prystalski, Brothers, Fisher and Miner the cause was transferred to Judge Trude.

As to the first amended judgment order, entered January 23, 1945:

This judgment order found Parker guilty of a direct contempt of the court for filing in the office of the clerk of the Circuit court on January 4, 1945, an affidavit and certain documents attached thereto; and for filing on January 15, 1945, an answer and exhibits attached thereto. The affidavit and the documents attached thereto and the answer and the exhibits attached thereto were made a part of the judgment order.

After certain preliminary steps had been taken in the slander proceeding, Shamberg, on January 2,1945, filed a verified motion in which he asked that an order be entered directing Parker to show cause why he should not produce for inspection and to be copied or photographed certain documents, specifying them; that Parker be required to state by affidavit whether any of the said documents are now or have been at any time in his possession or power, and if not now in his possession or power, when he parted with the same and what has become of them. The affidavit attached to the motion alleged that the documents related to the issues in the cause. The trial court entered an order that contains the following: “First, that the plaintiff, Harrison Parker, within four days from the date hereof, show cause why he should not produce for inspection, and to be copied or photographed, the documents described in said written motion . . . ,” and “Second, that the plaintiff, Harrison Parker, within four days from the date hereof, state by affidavit filed in this Court whether any of the documents described in said written motion are now or at any time in the past have been in his possession or power, and if not now in his possession or power, when he parted with the same and what has become thereof.” Instead of complying with" the order, Parker, on January 4, 1945, filed in the office of the clerk of the court an affidavit to which were attached and made a part of it certain documents, one purporting to be a “Certified Copy of a Resolution Passed at the Joint Meeting of the Ecumenical Council of the Puritan Church of the United States and the College of Divines of the Brotherhood of the Order of St. John, Held at the Masonic Temple, 32 W. Randolph Street, on August 16th, 1943, and Amended at the Adjourned Meeting Held in Chicago on February 5, 1944”; another, purporting to be a copy of a letter of “The Puritan Church — The Church of America,” addressed to “The Illinois League of Women Voters, 225 North Michigan Avenue, Chicago, Illinois,” dated December 20, 1944, signed, “The Puritan Church By Harrison Parker, its Chancellor”; another, purporting to be a copy of a letter of said church, addressed to “The Anti Defamation League, 100 North LaSalle Street, B’Nai B’Rith, Chicago, Illinois,” signed, “The Puritan Church By Harrison Parker, its Chancellor”; another, purporting to be a copy of a letter of said church, addressed to the “Hon. Francis Biddle, Attorney General of the U. S. A., Washington, D. C.,” dated December 26, 1944, signed, “The Puritan Church By Harrison Parker, its Chancellor”; another, purporting to be a copy of a letter of said churbh, addressed to “Mr. Richardson,” dated December 25, 1944, and signed, “Harrison Parker.” Parker states in the affidavit that when he moved his private files from 4534 Greenwood avenue, Chicago, in November, 1944, he destroyed all of his correspondence with Messrs. Miner, Norris and Race, “along with a lot of other useless and unimportant to him letters, records, etc.,” and that he has attached to his affidavit all of the requested documents which he has at present in his possession, power, custody or control.

It would unduly lengthen this opinion to state in detail all of the many wild, malignant and - scandalous charges that are made in the documents attached to the affidavit, against individuals, prominent public officials, judges of the various courts of Cook county, the judges of the Appellate court of this District, judges of the Supreme court of the State, and a judge of the United States District court. The charges are not confined to the living — one of those attacked has been deceased for fifty years. Women, also, are wantonly attacked. The father of the trial judge, who died a number of years ago, is charged with having put through a crooked deal, by which the public was robbed of enormous sums of money and a certain family enriched thereby. The first document attached to the affidavit charges, inter alia, that Robert R. McCormick “has either influenced, intimidated or bribed a U. S. Court Judge of Chicago in Case No. 22619, to issue a crooked order which enabled him to enter his best friend’s home, to steal his wife and break up his friend’s home”; that the public records show that McCormick either influenced, intimidated or bribed Judges Fisher, and Burke in a certain case to issue crooked orders in a vain attempt to hide the fact that a certain newspaper had stolen the sum of a hundred million dollars from Cook county; that the “public records show that . . . McCormick either influenced, intimidated or bribed Justices Stone, Gunn and Wilson, still sitting on the Supreme Court of Illinois, to write in case 24881 an opinion more crooked than any ever written by Judge Manton of Atlanta Prison, by which Cook County’s legal orderly law suit to compel the Chicago Tribune to disgorge millions of dollars it has stolen from Cook County, was temporarily obstructed”; that “the public records show that . . . McCormick either influenced, intimidated or bribed the entire division of the Appellate Court of Chicago, presided over by Judge Hugo Friend, to write a crooked opinion in Case No. 39804, in litigation in which McCormick and his Weymouth Kirkland had a large money interest-in a crooked opinion”; that in that opinion “the honest litigant [Parker] against Kirkland was outraged and despoiled by the crooked opinion of a crooked judge”; that “the public records show that . . . McCormick either influenced, intimidated or bribed Judges Joseph A. Sabath and John Prystalski, of the Criminal Court of Cook County in Cases 20981 and A40, to ‘railroad’ to Joliet Prison and to the Cook County Jail, for the benefit of this unconscionable scoundrel McCormick, men whom the Supreme Court of Illinois records in cases 20981 and 25595 show to be innocent of the charges for which they were ‘railroaded;’ ” that “by reason of the corruption by said McCormick and his crooked lawyers of all the Courts of Illinois from Eugene McGarry’s Municipal Court up to and including Francis Wilson’s crooked Supreme Court of Illinois, the combined money fortunes of the Medill-McCormick-Patterson family now amounts to the dangerous figure of 125 million dollars”; that “the facts and evidence of the Chicago Tribune’s 100 million dollar steal from Cook County and Robert R. McCormick and Weymouth Kirkland’s pollution of the entire court system of Illinois, in a vain effort to hide their crimes, is even worse than it is in the above summary of the evidence, dug from actual public records”; that for “fixing crooked judges to write crooked opinions,” McCormick “should be either incarcerated in an insane asylum or taken out by a posse of indignant and robbed fellow citizens, and either shot or hanged to an oak tree”; that McCormick, his newspaper and his crooked law firm have aided in placing on the Circuit and Superior courts of Cook county and the Appellate and Supreme courts of Illinois judges who pass judgment on the lives and property of defenseless men and women who have no way to protect themselves “against the depravities which such scoundrels will commit under the cover of a court order and opinions”; that the Governor of Illinois, by the orders of said McCormick, has and is violating the Constitution of Illinois; that “one Werner Schroder, McCormick member from Illinois of the Republican National Committee, walks in and out of the back doors of the chambers of the crooked judges of the Supreme Court of Illinois, to make political deals for them and with them, and . . . McCormick”; that the courts of Illinois are not open to the citizens of Illinois because of the corruption of the judges. The document purports to show that a resolution was passed by the “Ecumenical Council of the Puritan Church of the United States” that the Federal Government at Washington be petitioned to convene a federal grand jury to investigate the charges made in the document and that President Roosevelt, under his war powers, “convene a military court, and under the rules of such a court try for the crimes which they are charged with having committed against the civil liberties of the Nationals who are compelled to dwell in Illinois, the following men: Robert R. McCormick, Joseph Medill Patterson, Weymouth Kirkland, Judges Harry M. Fisher, Joseph Burke, John Prystalski, Hugo Friend, Joseph A. Sabath, and Justices Wilson, Gunn and Stone of the Supreme Court of Illinois. If found guilty, they should be taken out either by soldiers or a posse of civilians and shot, as a warning to other scoundrels, that our Federal Government will not tolerate the violation of a State Constitution, and the ‘railroad’ to prison or jail of innocent men by the order of crooked judges in the hire of this scoundrel, McCormick.” Appended to the document is an affidavit made by Parker in which he states that he was the secretary of the Joint Meetings of the Ecumenical Council of the Puritan Church of the United States, held at the Masonic Hall, 32 W. Randolph Street, Chicago, on August 16, 1943, and in Chicago on February 5, 1944; that Deacon William Ede presided; and that the document “is a true amended copy of one of the resolutions unanimously passed at said meetings. ’ ’ In the third document attached to the affidavit, the letter to ‘ ‘ The Anti Defamation League, B’Nai B’Rith,” the statement is made that “by the corruption of the entire court system of Illinois from Eugene McGarry’s corrupt Municipal up to and including Francis Wilson’s crooked Supreme Court of Illinois,” the Chicago Tribune had stolen from the State of Illinois a hundred million dollars; “that the steal was accomplished by the open notorious cowardly and illegal connivance between the Tribune Company, the owners of the Chicago Tribune, and two Jews: one Harry M. Fisher, a Judge of the Circuit Court of Cook County; and the other, Jacob Shamberg, the Assistant State’s Attorney of Cook County”; that “both of these gentlemen ... in order to gain the favor of the thief, the Chicago Tribune, had criminally sold out the State which they had been paid to protect”; that an illegal order entered by Judge Fisher in a certain case, 38-C-3209, “was more crooked than any ever issued by Judge Manton of Atlanta Prison.” In the letter addressed to the Attorney General of the United States the statement is made that McCormick and his crooked lawyer, Weymouth Kirkland, “have corrupted the entire [court] system of Illinois, from Eugene McGarry’s Municipal up to and including Francis Wilson’s crooked Supreme Court of Illinois.” In the letter addressed to the Illinois League of Women Voters the charge is repeated that the Tribune has corrupted all of the courts of Illinois. While contempt proceedings against him, growing out of the filing of the affidavit and the documents attached to it, were pending, Parker filed, on January 15, 1945, an answer, in which he stated that “all of the contents of said letters, documents and papers [attached to his affidavit] are true.” Attached to the answer as an exhibit is a copy of his affidavit of January 4 and all of the exhibits attached to it.

In the amended judgment order entered January 23, 1945, the trial court found: “(3) That the filing of said scurrilous affidavit and exhibits thereto, and said scurrilous answer and exhibits thereto, by said Harrison Parker constitutes an obstruction of justice and an abuse of the processes of this Court, which conduct of said Harrison Parker took place while this Court was in open session and tended to lessen the dignity and authority of this Court; (4) The Court further finds that said Harrison Parker, who is now here present in open Court, is, by reason of said conduct guilty of direct contempt of this Court.” ' The sentence then follows.

When the order of January 2, 1945, was entered, Parker, after stating to the trial court that he had no objection to the entry of the order if the court wished to enter it, said, “I will have a nice answer; one that the town will be glad to have on record. ’ ’' The record justifies the conclusion that Parker desired publicity for his infamous charges and that in furtherance of that -tlesire he filed the pleading and documents, so that the records of the courts would contain his charges. In the documents and pleading filed by Parker he is pictured as a man of great ability and force, but after a careful consideration of the many wild charges and statements contained in the documents and pleading we concluded that if there had been interposed in the trial court the defense that Parker was not of sound mind when he filed the documents and pleading, such a defense would have required serious consideration by the trial court and this court, but the record shows that no such defense was made and, therefore, for the purposes of this writ of error, we are obliged to presume that Parker was of sound mind when he committed the contempt of court for which he was punished.

A number of so-called constitutional questions are raised by Parker. He sued out from this court the instant writ of error to review the two judgment orders finding him guilty of contempt. “The rule has long been settled that if a case is taken to the Appellate Court and errors are assigned of which that court has jurisdiction, the party taking the appeal or suing out the writ of error is deemed to have waived all constitutional questions involved. (People v. Terrill, 362 Ill. 61; People v. Rosenthal, 370 id. 244.) This eliminates from consideration the constitutional questions raised by plaintiff in error.” (People v. Billow, 377 Ill. 236, 239. Italics ours.) After Shamberg raised the point in his brief that Parker had waived all constitutional questions by suing out a writ of error from this court, Parker, in his reply brief, asserts that he has not and does not waive any of the constitutional questions, and that “if Parker has appealed to the wrong forum, that can be remedied by a motion to transfer it to the proper forum. And the Appellate Court has a duty, not to proceed to judgment, but to transfer the cause, and may do so, on its own motion. (Schmidt v. Barr, 328 Ill. 365.)” Parker contends that under Section 86 of the Practice Act (ch. 110, par. 210, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 104.086]) and Buie 47 of the Supreme court of Illinois it is our duty to transfer the cause to the Supreme court. That section and that rule apply to cases brought to this court where we have no jurisdiction to entertain any of the issues raised on an appeal or writ of error. Schmidt v. Barr, supra, cited by Parker, is a case in point. There a freehold was involved, and it was held that as the Appellate court had no jurisdiction of such a case it was the duty of the court to transfer the cause to the Supreme court. But in the instant case Parker, by suing out a writ of error from this court, waived all constitutional questions that might be involved, as his brief assigns a number of errors of which this court has jurisdiction, and it is our right and duty to determine the merits of the instant writ of error.

There are certain settled principles of law that govern us in the consideration of this writ of error. “The only matter that can properly be considered on such a review is the order of the court adjudging the party to be in contempt. People v. Hogan, 256 Ill. 496; People v. Gard, 259 Ill. 238; Kneisel v. Ursus Motor Co., 316 Ill. 336; People v. Rockola, 346 Ill. 27; People v. Andalman, 346 Ill. 149; People v. Saylor, 238 Ill. App. 142; Tunnell v. People ex rel. Miller, 253 Ill. App. 422; Whittem v. State, 36 Ind. 196; Ex Parte Terry, 128 U. S. 289.” (People ex rel. Bain v. Feinberg, 266 Ill. App. 306, 308.) “A contempt committed in any place set apart for the use of any constituent part of the court during the session of the court is committed in the presence of the court, and any conduct constituting a contempt in the presence of any one of the constituent parts of the court while engaged in the business devolved upon it by law is a contempt committed in the immediate presence of the court. (People v. Cochrane, 307 Ill. 126.) ” (People v. Andalman, 346 Ill. 149, 153.) These settled principles of law determine several contentions raised by Parker, and adversely to him.

It is contended that “there can be no defamation when the matters published are true and of public concern”; that “Parker denies that the truth, as set forth in the five exhibits, constitute either an obstruction of justice or an abuse of the processes of the court. If they are true, how can they be an obstruction of justice ? If they are true, how can they be an abuse of the processes of the Circuit Court? Nothing in the record contraverts the truth of Exhibits A, B, C, D and E, the finding and order of the Honorable Daniel P. Trude to the contrary notwithstanding. They are still true. And can Parker be charged with responsibility for what the Puritan Church did?” (Italics ours.) In support of his argument Parker cites Storey v. People, 79 Ill. 45, which case has no application to the instant proceedings. (See People v. Sherwin, 334 Ill. 609, 613.) Parker further contends that before the trial court could find him guilty of contempt it would have to hear evidence to determine the truth or falsity of the charges made and would then have to find that the charges were false before it could adjudge him guilty of contempt. It would seem hardly necessary to state that no authority is cited that supports this contention."

“Any act which is calculated to embarrass, hinder or obstruct the court in the administration of justice or to lessen its authority or dignity is a contempt. (People v. Cochrane, 307 Ill. 126.) Contempt may be committed by incorporating impertinent, scandalous, insulting or contemptuous language reflecting on the integrity of the court in pleadings, motions and notice of motions. (13 Corpus Juris, 31, 32.) In Lamberson v. Superior Court, 151 Cal. 458, 91 Pac. 100, an attorney was held guilty of contempt of court in filing an affidavit in support of a motion for change of venue from the judge, alleging that in a former trial of the case the judge willfully made erroneous rulings on the admission of evidence and gave erroneous instructions to the jury because of ill-will toward and hatred of the party making the application. In McCormick v. Sheridan, 20 Pac. (Cal.) 24, an attorney was held guilty of contempt in filing a petition for rehearing in which the good faith and sincerity of the commissioner who had written the opinion adopted by the court was attacked. In In re Dunn, 85 Neb. 606, 124 N. W. 120, an attorney was held guilty of contempt of court in filing a petition for rehearing containing contemptuous and insolent language. . . . The disclaimer by plaintiff in error of any intentional disrespect to the court or any design to embarrass the administration of justice would have been of no avail, since his meaning and intent must be determined from the words used in his petition. (People v. Wilson, supra [64 Ill. 195].) In direct contempt committed in the presence of the court there is no need of evidence to prove what is already manifest. (Hohenadel v. Steele, 237 Ill. 229.) Whatever may have been the motive of plaintiff in error in using the language which was used in the petition filed by him, the use of such language was improper and constituted a direct contempt of the court in which such petition was filed, and the circuit court did not err in so finding.” (People v. Sherwin, supra, 615, 616, 618.) In this last case it is stated (p. 618) that an answer that the charges made were true would not purge the defendant of contempt. The trial judge in the instant case would have been a fit subject for ridicule had he followed the practice that Parker insists was necessary.

Parker contends that the charges contained in the documents filed were made by the Puritan Church and that he cannot be held responsible for the acts of that church. It is a sufficient answer to this idle contention to say that he has been found guilty of direct contempt for filing the documents in the office of the clerk of the court.

We find no merit in several other contentions raised by Parker.

While we think that the punishment imposed was too mild in view of the nature of the offense, nevertheless, the judgment entered may tend to deter evil-minded persons from defiling the records of our courts.

We cannot allow certain conduct of the attorney for Parker to pass without condemnation. In the brief he filed in behalf of Parker he has seen fit to assert a number of times that all of the charges made by Parker are true. In the early part of our opinion we stated some of the infamous charges that are contained in a purported copy of a resolution passed at the joint meetings of the Puritan Church in Chicago on August 16, 1943, and on February 5, 1944. Referring to these charges, this attorney states: “It [Exhibit A] recites facts, which though deplorable, are nonetheless true, and as such, they are the basis upon which the Federal Government is urged to bring its power to bear so that ‘republican form of government’ can be re-established in Illinois.” In commenting upon the exhibits attached to the affidavit filed by Parker on January 4, 1945, this attorney states: “If these exhibits are true, and they have never been proved otherwise, how can they be what the defendant, Shamberg, and his Tribune lawyers have stated them to be? Neither the Tribune lawyers nor anyone else can make the truth anything but the truth, even though the necessity be ever so urgent. Can the mere statements of Shamberg and his Tribune lawyers override the laws of Illinois, the Constitution of the State of Illinois, and the Constitution of the United States, in addition to the truth ? How can the power of contempt be superior to the truth? Can the power of contempt be used as a bludgeon? If contempt is equal or superior to the truth, then it can be used to squelch, choke off and destroy the truth, but the history of the world proves that such is impossible not only in theory, but in practice, any rulings of the Honorable Daniel P. Trude to the contrary notwithstanding. ’ ’ Other statements akin to the foregoing are also made in the brief. Thus it appears that the attorney sustains the infamous charges made by Parker against, all of the courts of Illinois. It is our considered judgment that when Arthur Frankel, the attorney in question and an officer of this court, filed the brief for Parker in this court he was guilty of conduct far more reprehensible than that of Parker in filing the affidavit and the documents on January 4, 1945, and the answer on January 15, 1945.

“The lawyer’s duty is of a double character. He owes to his client the duty of fidelity, but he also owes the duty of good faith and honorable dealing to the judicial tribunals before whom he practices his profession. He is an officer of the court — a minister in the temple of justice.” (People v. Beattie, 137 Ill. 553, 574. See, also, People v. Barrios, 237 Ill. 527, 540.) “The obligation which attorneys assume when they are admitted to the bar is not merely to be obedient to the constitution and laws, but to maintain at all times the respect due to the courts of justice and judicial officers.” (6 C. J. 594, Attorney and Client Sec. 54.)

Attorney Frankel was false to his obligations as an attorney when he filed the brief in question, and he has proven, out of his own mouth, that he is not fit to serve as “a minister in the temple of justice.”

The first amended judgment order entered January 23, 1945, is affirmed.

As to the second contempt order, entered against Parker on January 23:

On January 15, 1945, eleven days after Parker had filed the affidavit and documents attached thereto, Shamberg filed in the slander proceedings a very long-verified petition. It prays for an order directing Parker to show cause why he should not be punished for contempt of court for committing certain acts charged in the petition. The petition is an anomalous pleading, and was clearly vulnerable to attack by apt pleadings. As Parker, was found guilty of the second direct contempt because of certain statements in his answer to the petition, it is unnecessary for us to state all of the averments of the petition. In his brief Shamberg describes the petition as “a sworn petition asking for a rule on Parker to show cause why he should not be punished for other and further contempts, some indirect.” We deem it necessary, however, to state the following averments in the petition:

“Said Parker has stated under oath that said so-called ‘Puritan Church’ and said ‘Brotherhood of The Ancient Order of St. John’ have made plans to hang and murder numerous citizens and public officials, including the Governor of Illinois, several judges of the Supreme Court of Illinois, the Appellate Court of Illinois, and the Circuit and Superior Courts. Said Parker, in his deposition heretofore taken, identified letters he had written threatening to commit the above-mentioned murders, which letters he had signed ‘Puritan Church — by Harrison Parker.’ It was, therefore, alleged by and on behalf of this defendant in the divers petitions (filed to, procure subpoenas), that said so-called ‘Puritan Church’ was either in conspiracy with said Parker to commit extortion by threatening to commit the above-mentioned murders, or else was merely a sham devised by said Parker in an attempt to surround his attempted extortion and blackmail with an odor of sanctity.
“Said Parker, in resisting said petitions, and all other attempts to ascertain by deposition and in open court the identity and whereabouts of the persons he pretended composed said so-called ‘Puritan Church’ and said so-called ‘Brotherhood of The Ancient Order of St. John,’ stated under oath, both in the taking of his own and other depositions, and also in open court, on numerous occasions, that said so-called ‘Puritan Church’ and said so-called ‘Brotherhood of The Ancient Order of St. John’ had three ‘trustees’, one Conrad Miner, one Charles Norris, and one Homer Race, but that he did not know the whereabouts or residence of any of these three supposed ‘trustees.’
“Defendant [Shamberg] was and is still seeking to procure the testimony of said three supposed ‘trustees’, Miner, Norris and Race, for the purpose of showing either that said so-called ‘Puritan Church’ and said so-called ‘Brotherhood of The Ancient Order of St. John’ were either in conspiracy with said Parker to commit the crime of extortion by threatening to commit the above described murders, or else were merely shams and fraudulent devices designed by said Parker, in an attempt to surround his attempted extortion and blackmailing with an odor of sanctity.” The petition also avers that in one of the preliminary hearings in the slander suit after Parker had made a certain statement to the trial court Shamberg’s attorney stated to the court: “This man [Parker] is very slippery,” and they desire to have him make the statement under oath.

The prayer of the petition is: “(1) An order be entered directing said Parker to show cause why he should not be punished for contempt of court first, for obstructing justice by destroying the above mentioned records of said so-called ‘Puritan Church’ and said so-called ‘Brotherhood of the Ancient Order of St. John’ and said correspondence between said Parker and said Miner, Norris and Race while the same were being sought as evidence material to the merits of the matter in question in this cause; second, for obstructing justice by comrfiitting perjury by knowingly.falsely swearing in open court on December 4, 1944, and on January 2, 1945, that all of said records were then in Canada; and third, for obstructing justice by committing perjury by knowingly falsely swearing in his said affidavit of January 4, 1945, that he had never heard of and never had any connection with the so-called ‘Puritan Church Committee to Aid in Driving the Hoodlums, the Assassins and the Blackmailers out of the Control of Labor Unions, out of the Control of the Legal Prof ession, out of the Control of Journalism, and out of the Control of Politics — Conrad Miner, Charles Norris, Harrison Parker, Chairman.’ (2) Petitioner likewise prays that said Harrison Parker be ordered to answer this petition under oath within a short day to be fixed by the Court.” The trial court ruled that Parker should answer the petition.

When Shamberg’s petition is considered in the light of the fact that Parker had demanded a jury trial in the slander case, it seems reasonably clear that the trial court should not have ruled Parker to answer the petition, as the evident purpose of that pleading was to have the trial court prejudge facts that Parker insisted should be submitted to a jury. Parker’s answer to the petition takes up a great many pages of the record: After the answer had been filed the trial court entered the following judgment order:

“order
“this cause coming on to be heard upon the sworn petition of defendant, Jacob Shamberg, filed by leave of court on January 15, 1945, while the cause of ‘Harrison Parker, Plaintiff, vs. Jacob Shamberg, Defendant, No. 43C-13381’ was still pending before this court, for an order requiring said Parker to show cause why he should not be punished for criminal contempt of court by reason of the matters and things in said petition alleged, and upon Harrison Parker’s answer thereto filed on January 22, 1945;
“the court finds:
“(1) The Court has jurisdiction of the parties and of the subject matter hereof;
“(2) That on January 15, 1945, a sworn petition was filed on behalf of the Defendant, Jacob Shamberg, in the case of ‘Harrison Parker, Plaintiff, vs. Jacob Shamberg, Defendant, No. 43C-13381,’ which sworn petition charged said Harrison Parker with criminal contempt of court by reason of the matters and things therein alleged;
“(3) That on January 15, 1945, an order was entered by this Court, requiring the said Harrison Parker to show cause by Friday, January 19, 1945 why he should not be punished for criminal contempt of court by reason of the matters and things set forth in said petition filed on behalf of said Jacob Shamberg;
“(4) ...
“(5) That on Monday, January 22, 1945 said Parker filed in the office of the Clerk of the Circuit Court of Cook County his ‘Answer to Petition for Rule to Show Cause, ’ a true and photo static copy of which Answer is attached hereto, incorporated herein, and made a part hereof, and marked ‘Exhibit A’ hereto;
“(6) That said ‘Answer to Petition for Rule to Show Cause, ’ so filed by said Harrison Parker on January 22, 1945 which answer is attached hereto, incorporated herein, made a part hereof, and marked ‘Exhibit A’ hereto, does not purge said Parker of the criminal contempt charged in said sworn petition filed on behalf of said Shamberg on January 15, 1945;
“(7) That in said ‘Answer to Petition for Rule to Show Cause, ’ so filed by said Parker on January 22, 1945 said Parker has affirmatively set forth scurrilous, scandalous, defamatory, immaterial matter, which constitutes an obstruction of justice and an abuse of the processes of this court, and which conduct of said Harrison Parker took plade while this court was in open session and tended to lessen the dignity and authority of this court;
“(8) the court further finds that said Harrison Parker, who is now here present in open court, is, by reason of said conduct, guilty of direct criminal contempt of this court ;
“wherefore, the premises considered:
“it is ordered and adjudged that said ‘Answer to Petition for Rule to Show Cause, ’ heretofore filed by said Parker in the office of the Clerk of this court on January 22, 1945 which is attached hereto, incorporated herein, made a part hereof, and marked ‘Exhibit A’ hereto, be, and the same is hereby attached hereto, incorporated herein, made a part hereof and marked ‘Exhibit A’ hereto with the same force and effect as if the same were set forth in full in the body of this order; and
[A] “it is further ordered aud adjudged that said Buie to Show Cause heretofore issued by this court on January 15, 1945 requiring Harrison Parker to show cause why he should not be punished for contempt of court by reason of having committed the acts set forth in said petition heretofore filed on behalf of said Jacob Shamberg on January 14, 1945, in the case entitled Harrison Parker, Plaintiff, vs. Jacob Shamberg, Defendant, No. 43C-13381, be and the same is hereby made absolute; and
[B] “IT IS FURTHER ORDERED AND ADJUDGED that Said Harrison Parker was and is hereby adjudicated guilty of and in direct criminal contempt of this court by reason of his having affirmatively set forth the scurrilous, scandalous, defamatory and immaterial matters set forth by him in said ‘Answer to Petition for Buie to Show Cause,’ heretofore filed by said Harrison Parker in the office of the Clerk of this Court on January 22,1945; and
“it is further ordered ahd adjudged that said Harrison Parker stand committed to and be confined in the County Jail in said County of Cook and State of Illinois for ninety (90) days; ...” (Italics ours.)

This order shows that the trial court thought that the petition of Shamberg charged Parker with “direct criminal contempt” of court, whereas it merely asked for a rule upon Parker to answer the petition; that the trial court thought that the order he entered required Parker to show cause why he should not he punished for criminal contempt of court, whereas the order merely required Parker to answer the petition filed by Shamberg. The court, in paragraph (6) of his judgment order, held that Parker by his answer did not purge himself “of the criminal contempt charged in said sworn petition filed on behalf of said Sham-berg.” Shamberg admits in his brief, as he must, that his petition charges only indirect contempts, and that Parker could not be punished, under the petition, for destroying records out of the presence of the court, or for committing perjury in the presence of the court. Shamberg is compelled to rely, for an affirmance of the judgment order, upon that part of the order that we have designated as “ [B] ”, wherein the court adjudges that Parker was guilty of direct criminal contempt of the court by reason of “scurrilous, scandalous, defamatory and immaterial matters set forth by him in said ‘Answer to Petition for Rule to Show Cause. ’ ” The court does not designate the part or parts of Parker’s answer that are “scurrilous, scandalous, defamatory and immaterial,” but Shamberg, in his brief, relies upon that part of Parker’s answer wherein he charges that in the petition for rule to show cause one of Shamberg’s counsel had “knowingly and recklessly perjured himself,” and had taken “reckless liberties with the orderly processes of the law”; also upon the following paragraph of Parker’s answer: “Two: That this Honorable Court, upon its own motion, examine into the conduct, herein set forth of said petitioner, Jacob Shamberg, and of his said counsel, Kirkland, Fleming, Green, Martin & Ellis, attorneys, and particularly said J. B. Martineau, Jr., for any improper conduct of which they are or any of them may be found guilty, particularly for their presuming to contrive to have one judge of this Honorable Court overrule the rulings of another judge of the Honorable Court, against the dignity of this Court, and for committing perjury by swearing knowingly and falsely to certain petitions and motions filed herein by them or either of them; that in the event that they or any of them be found guilty, that they be punished accordingly, forthwith.”

When Shamberg filed the instant petition Parker had already filed the documents and pleading, thereby committing the contempt for which he was punished in the first amended judgment order, and in one of the documents Shamberg, an assistant State’s attorney, was charged with selling out the State of Illinois and conniving with a thief, so that the latter was enabled to steal one million dollars from the State of Illinois. It is a reasonable assumption that when Shamberg filed his petition he was justly incensed at Parker because of that charge. In determining whether any statements in Parker’s answer constitute direct contempt of court it must also be noted that Shamberg in his petition for a rule made many serious charges against Parker. The latter undoubtedly had the right to answer these charges and to make counter-charges. The petition is a highly provocative pleading, and Shamberg probably intended that it should have that effect. There is some force in the contention of Parker that the petition was designed to provoke him into making some answer or statement that would subject him to criminal prosecution or contempt proceedings. There is also force in Parker’s argument that if the statements he made in his answer, upon which Shamberg now relies, constitute contempt of court, why did not. the many charges made against Parker in the petition also constitute contempt of court? We do not think that the statement made by Parker in his answer wherein he asks the court to examine into, the conduct of Shamberg and his counsel constitutes contempt of court, as Parker had &s much right to ask the trial court to inquire into the conduct of Shamberg and his counsel as Shamberg had to ask the court to inquire into certain conduct of Parker. Shamberg contends, rather feebly, that certain parts of Parker’s answer attack the trial court, and cites in support of the contention, "(Add. A. 158-192).” We do not think that any statement contained in that part of Parker’s answer justifies the instant contempt judgment. The petition bitterly attacks the so-called Puritan Church, and Parker in his answer defends the church from the attacks and insists that under the constitution the courts have no right to interfere with the conduct of churches. He states in the answer that Judge Harrington, when the matter was before him, refused to aid Shamberg in his attempts to inquire into the membership and conduct of that church, and that Shamberg, in his petition, is seeking to have Judge Trude overrule Judge Harrington, but that statement did not constitute direct contempt of court. We think that when the statements made by Parker in his answer are considered in the- light of the serious charges that were made against Parker and the Puritan Church in the petition, the answer seems to be a fairly temperate pleading. We have reached the conclusion that the trial court erred in entering the second judgment order, finding Parker guilty of a direct criminal contempt.

The amended judgment order of the Circuit court of Cook county, entered January 23,1945, finding Harrison Parker guilty of direct contempt, is affirmed. The second judgment order of the Circuit court of Cook county, entered January 23, 1945, finding Harrison Parker guilty of direct criminal contempt of court, is reversed.

Amended judgment order of the circuit court of Cook county entered January 23, 1945, finding Harrison Parker guilty of direct contempt, affirmed. Second judgment order of the circuit court of Cook county entered January 23, 1945, finding Harrison Parker guilty of direct criminal contempt of court, reversed.

Friend, P. J., and Sullivan, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    People of State of Illinois, Defendant in Error, v. Agnes Richardson, Plaintiff in Error.
    Gen. No. 43,373.
    Opinion filed February 14, 1946.
    Rehearing denied February 26, 1946.
    Released for publication February 26, 1946.

      Arthur Frankel, of Chicago, for plaintiff in error.
    William J. Tuohy, State’s Attorney, for defendant in error; Jacob Shamberg, Gordon B. Nash, John T. Gallagher and George B. Duggan, Assistant State’s Attorneys, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

This writ of error seeks to review two separate judgment orders. In each Agnes Richardson was found guilty of a direct contempt of court and the punishment imposed was ten days in the county jail.

As to the first amended judgment order, entered January 15, 1945:

The judgment order reads as follows:

“Amended Order
‘ ‘ This cause having come on to be heard on the rule to show cause heretofore issued in this court why Agnes Richardson should not be punished for contempt of court for refusing to answer certain interrogatories in a deposition heretofore taken before E. E. Wenger, Notary Public, and upon the sworn answer thereto heretofore filed by said Agnes Richardson, the Court Finds:
“1. That while the said Agnes Richardson was on the witness stand before this Court in the hearing on the contempt matter pending against her for refusal to answer certain interrogatories in her deposition taken before E. E. Wenger, the said Agnes Richardson, on to-wit: January 15, A. D. 1945, insulted, villified and abused this Court as appears from the transcript of said proceedings attached hereto, made a part hereof, and marked ‘Exhibit A/
‘ ‘ 2. That said insulting, villifying and abusive language by said Richardson, addressed to- this Court, constitutes an obstruction of justice, which conduct of said Agnes Richardson took place while this Court was in open session and. tended to lessen the dignity of this Court.
“3. The court' further finds that said Agnes Richardson, who is now present in open court, is by reason of said conduct guilty of direct contempt of Court.
“Wherefore, The Premises Considered:
“It is Ordered and Adjudged that the transcript of said proceedings before this Court on January 15, 1945, which is attached hereto as ‘Exhibit A’ hereto, be and the same is hereby incorporated with and made a part of this order and marked ‘Exhibit A’ hereto, with the same force and effect as if the same were set forth herein; and
“It Is Further Ordered and Adjudged that said Agnes Richardson was and hereby is adjudicated guilty of and in direct contempt of this Court;
“And It Is Further Ordered and Adjudged that said Agnes Richardson stand committed to and be confined in the County Jail in said Cook County, State of Illinois, and that when arrested by said Sheriff, said Agnes Richardson be committed to said jail and that she be there held for ten (10) days or until otherwise discharged from said imprisonment by due process of law.”

The transcript of the proceedings (Exhibit A) shows that Agnes Richardson was called as a witness by Mr. Martineau, attorney for Shamberg, and was being examined by him. It is agreed that the hearing was a proceeding in the case of Harrison Parker v. Jacob Shamberg wherein Parker sued Shamberg for slander. Mrs. Richardson was being examined as to her connection with the Puritan Church, at LaGrange, Illinois, and her knowledge of the officers and members of that church. The examination had reached a point where Mr. Martineau had a certain document marked for identification.. The following then occurred: “Mr. Martineau:. Now, your Honor, I call your attention to this document. We were told on December 4th that this document was of record, and this lady has stated that Race, Norris and Minor were the trustees of this church at LaGrange, Illinois. The Court: Wait a minute. This is the first time it has come up. I want to know what goes on in the court room. Mr. Martineau: All right, I beg your pardon. The Court: In my twenty six years I have been on the bench, this is the first time I have come up against a situation like this, where an individual who is affiliated with a church, under erroneous advice, takes the position that they won’t help the law unscramble a dirty, nasty situation. It is true that under our constitution and under our laws, we have freedom of religion. Now, we have one religion taking a crack at another religion, and by innuendoes, have records which they force persons to listen to when they ring your door bell, and tell you they want to tell you something about another religion, how bad it is, and so forth. And if you throw that person out, or tell him to go away from your porch, and don’t contaminate your back porch or the alley and these persons call you names at that time — the Cities and Villages try to pass ordinances to meet that situation, and they have been found unconstitutional; apparently under the guize of religion, you can do almost anything. You can set up a wooden effigy and worship it and call it religion, what you believe personally. You can go out and villify every other religion. You can worship a totem pole. This lady is clearly in contempt of court, and she is in contempt of court now. She knows she is not telling the truth. She has not searched her mind to attempt to tell the truth. She has been coached in open court by Mr. Parker to tell these things. The Witness: Why Judge, I beg your pardon, coached — The Court: There are signals going on. Mr. Parker: I did not signal the lady. The Witness: That is a terrible statement. Mr. Parker: I did not signal the lady. The Witness: Judge, Your Honor, I didn’t even look at Mr. Parker. Mr. Parker: No sir. The Witness: Why, Judge, that is an unkind statement to make, your Honor. I resent that, because I am a lady. I was not even looking at Mr. Darken. I don’t think that is very kind of you. The Court: Of course, I have got — The Witness: That was a terrible statement to make. I didn’t even look at Mr. Parker. The Court: [addressing the bailiff of the court] What did you see? The Witness: That is a terrible statement to make. I never did such a thing. The Bailiff: She hesitated, and he' shook his head. Mr. Parker: I never did such a thing. The Witness: That is a terrible thing. The Court: There are other persons— The Witness: I was looking at the stenographer. I saw that she had difficulty attempting to hear. I was wondering what her trouble was. And I think that was terribly unkind. The Court [addressing Parker]: You have brought about this whole thing. Mr. Parker: Maybe I have, but there is nothing the woman has testified to that I objected to. She is telling the truth. I will tell you right now she is telling the truth. The Court: I don’t think so. Mr. Parker: This is the time, Your Honor, she is telling the truth. The Witness: Yes. Mr. Parker: She was not present at that meeting when these men resigned and Mr. Minor and Mr. Pace and Mr. Norris were elected. She never even saw those persons. She doesn’t even know them. The Court: Mr. Parker, will you please sit down. Mr. Parker: No, I am helping your Honor. The Court: You are not helping. Mr. Parker: She has told'you the facts. The Court: You are entitled under the law to represent Harrison Parker. Mr. Parker: That is what I am doing. The Court: All right, sit down. This has nothing to do with Harrison Parker. It is this lady. The Witness: Judge, Your Honor, I will defend myself. I am a lady of character. I will stand on my own feet as a lady. I resent the insult of this court. I was not looking at Mr. Parker. I was looking at the stenographer. The Court: You can resent it, but you must obey the law. The Witness: I am obeying the law. The Court: You are not obeying the law. You come into this court not intending to obey the law to tell the truth. The Witness: Judge, I think your imagination is running away with you. I have no reason to disobey anything. The Court: You are showing disrespect of the court. The Witness: Judge, I am telling the truth, before God, I am. You can judge me the way you want. There is a God above that judges all. The Court: Madam, you go to jail for ten days for contempt of court. The Witness: I knew that would happen. The Court: You have talked yourself into trouble. The Witness: Judge, Your Honor, I am [was] standing on my feet. I was not looking at Mr. Parker. I was looking at the stenographer. I am better off. The Court: Be quiet. The Witness: Is your imagination running away with you? The Court: Will you take this lady out of court. The Witness: I am going.” * (Italics ours.)

“. . . The only matter that can properly be considered on such a review is the order of the court adjudging the party to be in contempt. People v. Hogan, 256 Ill. 496; People v. Gard, 259 Ill. 238; Kneisel v. Ursus Motor Co., 316 Ill. 336; People v. Rockola, 346 Ill. 27; People v. Andalman, 346 Ill. 149; People v. Saylor, 238 Ill. App. 142; Tunnell v. People ex rel. Miller, 253 Ill. App. 422; Whittem v. State, 36 Ind. 196; Ex Parte Terry, 128 U. S. 289.” (People ex rel. Bain v. Feinberg, 266 Ill. App. 306, 308.)

Parker’s attorney represents Mrs. Richardson in this court, and. in the brief he filed in her behalf he states that “in order that there be no miscarriage of justice, the matters of both Parker and Agnes Richardson must be construed and considered together, ’ ’ and counsel for The People, in their brief, seize upon this statement and attempt to prejudice Mrs. Richardson’s case by injecting into this contempt proceeding alleged acts of Parker that are not shown in the instant record and that cannot be considered in determining the merits of the instant writ of error. In passing upon the merits of this writ of error we must consider only the order of the court adjudging Mrs. Richardson guilty of direct contempt. That order did not, and could not, under the law, find Mrs. Richardson guilty of perjury. It found that Mrs. Richardson “insulted, villified and abused this Court as appears from the transcript of said proceedings attached hereto, made a part hereof, and marked ‘Exhibit A,’ ” and we must test the findings of the trial court by a consideration of that exhibit.

While it is the duty of a witness to show proper respect to the trial court, it is also the duty of the trial judge to maintain his judicial poise and to show due respect and consideration to a witness, and not to manifest hostility toward her. Furthermore, a judge in dealing with an alleged contempt committed in his presence should not act hastily but should proceed with great caution and deliberation. (People v. Rongetti, 344 Ill. 107, 122.) We take notice of the fact that we have this day filed an opinion in People of the State of Illinois v. Harrison Parker, Gen. No. 43372 [328 Ill. App. 46], in which case Judge Trude found Parker guilty of direct contempt for filing with the clerk of the Circuit court certain documents and a pleading, and that in one of the documents filed a serious and wanton charge was made against the father of Judge Trude. The filing took place a few days before the instant proceeding, and it is reasonable to assume that Judge Trude still felt justly incensed against Parker. The transcript shows that he was provoked at Parker because the latter attempted to take part in the proceedings, although Parker was the plaintiff in the cause and was acting as his own lawyer. However, regardless of his feelings against Parker, it was the duty of the court to preside impartially in the cause; to maintain his judicial poise, and to treat the witness, Mrs. Richardson, a friend and follower of Parker, fairly. The transcript shows that the trial court did not treat Mrs. Richardson fairly and that he manifested hostility toward her during the entire examination. We will first dispose of the charge made by the trial court during the proceedings, that Mrs. Richardson was being coached in open court by Parker. That charge was based upon the unverified statement of the bailiff of the court, and his statement, that “she hesitated and he shook his head,” does not even make out a prima facie showing that any testimony Mrs. Richardson gave was .affected by the alleged coaching of Parker. Moreover, the judgment order does not find her guilty of direct contempt because of the alleged coaching, so that charge must be disregarded. When the trial court stated that “This lady is clearly in contempt of court, and she is in contempt of court now. She knows she is not telling the truth. She has not searched her mind to attempt to tell the truth. She has been coached in open court by Mr. Parker to tell these things,” Mrs. Richardson had a right to defend herself, in a proper manner, against the serious charges made against her. Silence on her part would have warranted an inference that she acquiesced in the charges. The trial court apparently based his finding' that Mrs. Richardson showed disrespect of the court upon the following part of the transcript: “The Witness: Judge, Your Honor, I will defend myself. I am a lady of character. I will stand on my own feet as a lady. I resent the insult of this court. I was not looking at Mr. Parker. I was looking at the stenographer. The Court: You can resent it, but you must obey the law. The Witness: I am obeying the law. The Court: You are not obeying the law. You come into this court not intending to obey the law to tell the truth. The Witness: Judge, I think your imagination is running away with you. I have no reason to disobey anything. The Court: You are showing disrespect of the court. The Witness: Judge, I am telling the truth, before God, I am. You can judge me the way you want. There is a God above that judges all. The Court: Madam, you go to jail for ten days for contempt of court. The Witness: I knew that would happen. The Court: You have talked yourself into trouble. The Witness: Judge, Your Honor, I am [was] standing on my feet. I was not looking at Mr. Parker. I was looking at the stenographer. I am better off. The Court: Be quiet. The Witness: Is your imagination running away with you? The Court: Will you take this lady out of court. The Witness: I am going.” (Italics ours.) Mrs. Richardson was not a lawyer and she was not represented by a lawyer. From the outset of the examination the trial court showed that he was strongly prejudiced against the witness and it is somewhat surprising, in view of the hostile attitude the trial court manifested against her and the serious charges that he made against her, that the witness controlled herself as well as she did. She was undoubtedly excited and provoked by the charges and under all of the circumstances it would be a harsh rule that would require her to carefully select her words in defending herself. To justify the instant judgment it would have to clearly appear that she showed a disposition to affront the authority and dignity of the court. We are satisfied that when the trial judge sentenced Mrs. Richardson to ten days in jail on the ground that she had “insulted, villified and abused” the court, he had temporarily lost his usual judicial temperament and good judgment. The first amended judgment order must be and it is reversed.

As to the second judgment order for contempt:

This order, entered February 15, 1945, reads as follows:

“Order
“This Cause Coming On This Day To Be Heard on the motion of Agnes Richardson, a true and correct copy of which is attached hereto, made a part hereof, incorporated herewith, and marked ‘Exhibit A’; and the Court being duly advised in the premises, Finds:
“1. The Court has jurisdiction of the parties and of the subject matter hereof.
“2. That on, to-wit, February 15, 1945, said Agnes Richardson, presented in open court a certain false, scurrilous, defamatory motion, verified by her oath, a true and correct copy of which is attached hereto, made a part hereof, incorporated herewith, and marked ‘Exhibit A’.
“3. That the charge in said affidavit, that this court had destroyed the papers described therein, is false and malicious in that said papers described in said motion consisted of 9 typewritten pages bearing the initials ‘-2-js’, .‘-3-js’, ‘-4-js’, ‘-5-js’, ‘-6-js’, ‘-7-js’, ‘-8-js’, ‘-9-js’, ‘-10-js’, and had not been destroyed by this court but were and are still being held by this court for the purpose of holding the same until the matter is disposed of.
“4. That the filing by said Agnes Richardson of said false, scurrilous and defamatory motion, which is attached hereto, made a part hereof, and marked ‘Exhibit A’, constitutes an obstruction of justice and in abuse of the processes of this court, which conduct of said Agnes Richardson took place while this court was in open session and tended to lessen the dignity and authority of this court.
“5. That said Agnes Richardson, who is now here present in open court, is, by reason of said conduct, guilty of direct criminal contempt of this court.
“Wherefore, The Premises Considered:
“It Is Ordered and Adjudged that said false, defamatory, scurrilous motion and affidavit, presented by said Agnes Richardson in open court on February 15,1945, be, and the same is hereby, ordered to be marked ‘Exhibit A’, incorporated herewith and made a part of this order.
“It Is Further Ordered and Adjudged that said Agnes Richardson was and hereby is adjudicated guilty of and in direct criminal contempt of this court.
“It Is Further Ordered and Adjudged that said Agnes Richardson stand committed to and be confined in the County Jail in said County of Cook, State of Illinois, for a period not to exceed ten (10) days; and
“The Court Further Hereby Orders and Adjudges that a warrant of commitment do now issue in due form for the arrest forthwith of said Agnes Richardson, directed to the Sheriff of Cook County, in the State of Illinois, and that, when arrested by said Sheriff, said Agnes Richardson be committed to said jail and that she be there held for a period not to exceed ten (10) days, or until she shall be otherwise discharged from said imprisonment by due process of law.”

Exhibit A attached to the judgment order reads as follows:

“Motion
“Now comes Agnes Richardson, defendant in the above entitled cause, pro se, and represents:
“That on to-wit, the 13th day of February, 1945, she served notice and presented a motion to have the stenographic report of the instant proceeding certified to be correct by Daniel P. Trude, Judge of this Honorable Court.
“That said stenographic report consisted of thirty-five (35) consecutively numbered pages numbered one (1) to thirty-five (35), inclusive, and each page was numbered at the bottom thereof in consecutive order.
“That said stenographic report of the proceedings contained an affidavit signed by Jenny A. Strand, court reporter, to the effect that said stenographic report is a true and correct transcript of all the evidence heard.
“That after an examination of the said stenographic report consisting of the said thirty-five (35) consecutively numbered pages and containing the certification as to correctness by the said Jenny A. Strand, court reporter, the said Daniel P. Trude, Judge of this Honorable Court, did with his own hands in open court, while seated on the Bench, remove from the said stenographic report of the proceedings, over the objection of this movant, nine (9) pages numbered two (2) to ten (10), inclusive, with the result that said pages numbered one (1) and said pages numbered eleven (11) through thirty-five (35) do not represent all of the proceedings in this instant cause, and are not a true and correct stenographic report of the proceedings therein.
“That by said act, said Daniel P. Trude, Judge of this Honorable Court, has destroyed important papers and files of this instant proceeding, he has vitiated and destroyed the value of the certification by the said Jenny A. Strand, and he has contrived to alter and destroy the stenographic report of the proceedings in this case, and he has alone, and by himself, contrived by his said act to pervert and subvert justice by his said acts.
“That after the said Daniel P. Trude, Judge, did mutilate said stenographic report of the proceedings, as aforesaid, he then and there signed a false and untrue certification in said proceeding, that ‘the above and foregoing is a true and correct report of proceedings at said hearing. ’
"That in addition thereto, he did, on said date, sign an order submitted by this movant certifying this said mutilated, incomplete and incorrect stenographic report of said proceedings ‘as being a correct stenographic report of the proceedings herein’, and he also ordered ‘the same is hereby ordered to be made a part of the record of the within matter. ’
“Wherefore, Agnes Richardson moves the Honorable Daniel P. Trude, Judge:
“That at his own expense, forthwith, he restore those nine (9) pages that he has removed from said stenographic report of the proceedings certified to he correct by Jenny A. Strand, court reporter.
[Signed] “Agnes Richardson”

(Here follows the verification.)

The action of the respondent in filing this motion cannot be defended nor excused. The language of the motion clearly reflects on the integrity of the court, and constituted a direct contempt of court. (See People v. Sherwin, 334 Ill. 609, 615.)

The first amended judgment order for contempt, entered January 15,1945, by the Circuit court of Cook county, is reversed. The second judgment order for direct criminal contempt, entered February 15, 1945, by said court, is affirmed.

First amended judgment order for contempt, entered January 15, 1945, by the circuit court of Cook county, reversed. Second judgment order for direct criminal contempt, entered February 15, 1945, by the circuit court of Cook county, affirmed.

Friend, P. J., and Sullivan, J., concur.


author: Mr. Justice Sullivan

text:
    Frank Flick and William J. Reedy, Trading as Miller Motor Company, Appellants, v. James H. Gately et al., Appellees.
    Gen. No. 43,325.

      Opinion filed February 14, 1946.
    Opinion modified and rehearing denied March 5, 1946.
    Released for publication March 5, 1946.
    Smith, Bundesen, White & Raynor, of Chicago, for appellants; Peter D. Giachini and Alphonse Cerza, both of Chicago, of counsel.

      Barnet Hodes, Corporation Counsel, for appellees; J. Herzl Segal and Sydney R. Drebin, Assistant Corporation Counsel, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.

On December 8,1942 plaintiffs, Frank Flick and William J. Reedy, doing business as the Miller Motor Company, purchased the property" located at 4027 N. Kedzie avenue, Chicago, Illinois. There was a one story brick building on this property, which had for sometime theretofore been used as a garage and automobile repair shop. Plaintiffs purchased these premises for use as a machine shop and installed therein punch presses and other types of machines for the purpose of manufacturing “taper pins” and other metal products for the United States Army and Navy.

On July 12, 1943, after a hearing and over the objections of some adjoining-property owners, the commissioner of buildings of the City of Chicago ordered a permit to issue to plaintiffs for the operation of a machine shop on the premises in question. On July 18, 1943 two adjoining property owners filed an appeal to the zoning board of appeals of the City of Chicago (hereinafter for convenience sometimes referred to as the Board) questioning the decision of the building commissioner on the ground that plaintiffs’ premises were in a district “zoned for commercial purposes . . . in last forty days a machine shop has moved in at 4027 Kedzie right next door to our building and they are running from 8 A. M. until 2 or 3 A. M. with heavy machinery which causes a great deal of noise an.d vibration to our building keeping us from any rest night or day. Heavy punch presses run almost continually from 8 A. M. until 2 A. M. following day” All parties in interest were notified that the appeal was set for hearing before the Board on July 26, 1943. There were purported hearings on that day and on September 13, 1943 and September 27, 1943. On the latter date the Board took the case under advisement and rendered its decision on October 25, 1943, reversing the order of the commissioner of buildings and directing him “to abate the violation.” Plaintiffs filed a complaint in the superior court for a writ of certiorari to review the order of the zoning board of appeals. The writ was ordered to issue and an order for a temporary injunction was entered restraining the Board and the commissioner of buildings from enforcing the Board’s order of October 25, 1943. On February 2, 1944 the Board filed its return to the writ of- certiorari. When the cause came on for hearing in the trial court on October 24, 1944, plaintiffs filed a motion “for leave to submit testimony and other proofs to the court, or to a referee appointed by the court, to take and report the evidence herein, in conformity with Chapter 24, Section 73-6, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 21.2127].” This section provides in part as follows:

“If, upon the hearing, it appears to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the evidence to the court with his findings of fact and conclusions of law. The evidence, findings, and conclusions shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.”

On the same day that plaintiffs presented their aforesaid motion the trial court entered its judgment order, the pertinent portions of which are as follows:

“It further appearing to the court; from ah examination of the return to the Writ of Certiorari heretofore filed herein and having heard the arguments of counsel.
“It further appearing to the court; that additional testimony is not necessary for a proper disposition of the matter.
“It further appearing to the court; that the Writ of Certiorari was improvidently issued.
“It is therefore ordered; that the Writ of Certiorari be quashed and the temporary restraining order heretofore entered herein be dissolved and held for naught, and the motion of plaintiffs to submit proofs, or, in the alternative, to make an offer of proof, is hereby denied.”

Plaintiffs appeal from the foregoing judgment order.

They contend that the trial court erred in refusing to permit them to submit evidence on the hearing on the writ of certiorari and in quashing said writ.

Since the trial court’s refusal to permit plaintiffs to submit evidence and its order quashing the writ of certiorari were based solely on its examination of the return of the Board, it is first necessary to consider such return. Plaintiffs insist that the return shows on its face that the order of the Board was invalid in that they were not afforded a hearing in conformity with sec. 73-5 of the Cities and Villages Act (par. 73-5, ch. 24, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 21.2126]), which provides in part as follows:

“The board of appeals shall fix a reasonable time for the hearing of the appeal and give due notice thereof to the parties . . . upon the hearing any party may appear in person or by agent or by attorney. ’ ’

Inasmuch as no particular method of procedure for the conduct of hearings before the Board on appeal is provided for either in the Illinois Zoning Act (par. 73-1 to and including par. 73-10 Cities and Villages Act: — ch. 24, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 21.2122 et seq.]) or in the zoning ordinance of the City of Chicago, its hearings must be governed by established rules of procedure applicable generally to administrative tribunals. In 42 Am. Juris. under the heading, “Public Administrative Law,” it is said in sec. 150, “The mere holding of a hearing does not justify administrative action required to be based on a hearing. The decision of the trier of the facts must be reached in accordance with the facts proved, and it must find adequate support in the evidence, formally introduced at the hearing, in all its essential elements.”

There is nothing in the return of the Board that shows what section or provision of the zoning ordinance plaintiffs were held to have violated but we assume that it was sec. 194.8 of the Municipal Code of Chicago which was in force at the time they purchased the premises in question. This property was in a district zoned for commercial use but the aforesaid section contains the following provisions pertaining to permissible light manufacturing uses in commercial districts:

“C2 Use — A C2 use shall include all uses not otherwise classified, provided all materials and products are stored and all manufacturing operations are carried on entirely within substantial buildings completely enclosed with walls and roof, and provided no operations are of such a nature as to become offensive or noxious to the occupants of adjoining residence or apartment uses by reason of the emission of odors, fumes or gases, dust, smoke, noise, or vibrations; and C2 uses shall include such uses as . . . machine shop. . . .”

It is impossible to determine from the proceedings before the Board as shown in its return whether the matter before it was the question as to whether plaintiffs violated the aforesaid section of the zoning ordinance in that they were engaged in heavy manufacturing, a nonconforming use, as distinguished from light manufacturing, a permissible úse, or the question as to whether the operation of plaintiffs’ plant became and was offensive and obnoxious to “adjoining residence or apartment uses” by reason of excessive noise or vibrations emanating from said plant.

In any event, as will be hereafter shown, the Board did not afford plaintiffs such a hearing as is required by law as to their alleged violation of the zoning ordinance. It appears from the return of the Board that when the appeal was first considered by it on July 26, 1943, there was a lengthy discussion between the chairman of the Board, plaintiffs’ attorney, who requested a continuance, and some of the adjoining property owners. In the course of this discussion the chairman of the Board said, “We are not hearing the case . . .we are trying to get together to continue the case . . . we will continue the case . . , in the meantime they are to stop the press work at night.” The'matter was then continued to September 13, 1943 and on that date plaintiffs were represented by Attorney Milton Smith, who was not the same lawyer who appeared for them on July 26, 1943. He was told by the chairman of the Board, “We heard this case,” although as already shown, said chairman stated at the first session “We are not hearing the case.” At the close of another lengthy discussion between the members of the Board, some adjoining property owners and plaintiffs’ attorney the chairman of the Board stated, “This is informal,” and continued the case until September 27, 1943. When the case was called on that date the chairman of the Board stated that “we cannot hear the case today because of not having a quorum on appeal cases” and addressing plaintiffs’ attorney, said, “The case was in before you came, the evidence was all given in [meaning at the first session]. ’ ’ After some further general discussion at this session the case was taken under advisement by the Board which thereafter rendered its decision.

The chairman of the Board took the leading part in the discussions referred to at the three sessions, endeavoring to have plaintiffs and the complaining adjoining property owners compromise their differences. This was of course a laudable endeavor but when the Board did not succeed in effecting a compromise, plaintiffs should have been given a hearing such as they were entitled to under the law. The foregoing statements of its chairman contained in the return show conclusively that no proper hearing was accorded plaintiffs at any session of the Board.

The report of proceedings in the return discloses that not a single witness testified and that no evidence of any kind was introduced before the Board at any of its sessions when this case was being considered by it. While it is true that in the course of the general discussions at the various sessions of the Board some of the adjoining property owners made statements that the operation of plaintiffs’ plant caused excessive noise and vibrations, no evidence as such was presented to said Board. The rule is firmly established that findings of administrative boards must be based on facts established by evidence and “nothing can be treated as evidence which is not introduced as such.” Chicago & E. I. Ry. Co. v. Commerce Commission ex rel. Hoopeston Grain & Coal Co., 341 Ill. 277.

It is conceded that the return does not show that any witness was examined under oath at any session of the Board when this matter was being considered. Section 73-3 of the Cities and Villages Act (par. 73-3, ch. 24, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 21.2124]) provides that the chairman of the Board or in his absence the vice chairman “may administer oaths and compel the attendance of witnesses.” It is insisted that under this statutory provision it is discretionary rather than obligatory that witnesses appearing before the Board be sworn. This provision authorizes the administration of oaths to witnesses and it can only be reasonably construed as meaning that all witnesses appearing before the Board must be sworn. Otherwise, a preposterous situation might well arise, with the Board requiring some witnesses to be sworn and permitting other witnesses in the same case to testify without being sworn. In legal contemplation the word testimony, itself, connotes “a declaration made by a witness under oath or affirmation.” (Webster’s New International Dictionary, Second Edition.) In our opinion administrative and quasi judicial bodies which are authorized to administer oaths to witnesses are required to exercise such authority.

Counsel argue that, assuming that the statute does require that witnesses testifying before the Board must be sworn, plaintiffs are now precluded from questioning the Board’s failure to swear the witnesses in this case, because they did not do so at the time they testified. A simple and complete answer to the Board’s position in this regard is that, as has been seen, no witness testified in this case.

There were several documents included in the return as tending to support the findings and decision of the Board. These documents were not introduced in evidence at any of its purported hearings and had no place in the return.

Counsel for the Board assert that it “was not even required to hear testimony.” That would only be true if plaintiffs had admitted the violation with which they were charged. In the absence of such admission it was the duty of the Board to require the submission of evidence at a formal and proper hearing sufficient to establish facts showing that plaintiffs were guilty of violating the zoning ordinance as charged.

Counsel for the Board contend that “the fact remains that the decision of the Board of Appeals under the zoning statute may be based on ‘ other facts ’ which were not presented at the hearing” and they base this contention on section 73-6 of the Cities and Villages Act (par. 73-6, eh. 24, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 21.2127]), which reads in part as follows:

“The board of appeals shall not be required to return to the court the original papers acted upon by it. It shall be sufficient to return certified or sworn copies thereof or of such portions thereof as may be called for by the writ. The return must concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and must be verified.” (Italics ours.)

The instant contention does not merit serious consideration. The other pertinent and material facts mentioned in the foregoing section of the statute can only refer to facts which are established by evidence in a proper hearing before the Board.

It is also contended that plaintiffs’ attorney admitted their violation of the zoning ordinance but the return of the Board does not show any such admission. If on a formal hearing counsel did admit the violation charged, plaintiffs would of course be bound by his admission. However, there was no formal hearing by the Board but merely an effort by way of general discussion to compromise the differences between plaintiffs and the objecting adjoining property owners. We have carefully examined the record of proceedings contained in the return and find that plaintiffs’ attorney did not at any time admit that they violated the zoning ordinance. He persistently protested at the purported hearings that their plant was not being operated in violation of said ordinance and offered to have plaintiffs do everything possible in the matter of making adjustments therein “to satisfy the neighbors.” His offers to try and placate the adjoining property owners did not constitute binding admissions and the Board in its decision did not find that they were. It based its findings on “testimony” which it claimed it had “fully heard.”

There can be no question but that plaintiffs were entitled to submit evidence to the court on its review by writ of certiorari of the zoning board of appeals ’ decision and the trial judge erred in arbitrarily denying them their statutory right to submit evidence on the ground that it appeared to him “from an examination of the return . . . that additional testimony is not necessary for a proper disposition of the matter.” The return made by the board of appeals in this case rendered it absolutely necessary for a proper disposition of this matter that evidence be heard on the court review of the Board’s decision, since, as has been shown, plaintiffs were not afforded a hearing by the Board as required by law, no evidence as such was introduced before it and not a single witness was sworn to testify.

In Hughes v. Board of Appeals of Chicago, 325 Ill. 109, in passing upon that portion of section 73-6 of the Cities and Villages Act, heretofore set forth, which authorizes the court to take evidence on its hearing on the writ of certiorari provided for under the Zoning Act, the court said at p. 113:

“In providing for the review of the order of a zoning board of appeals by means of a writ of certiorari the legislature saw fit to widen the field of review by the court so as to include not only questions of jurisdiction and regularity but also questions of fact, if the court should deem necessary for the proper disposition of the matter. . . . The object of this provision was to broadeh the field of investigation of the circuit court. . ..”

In Park Ridge Fuel & Material Co. v. City of Park Ridge, 335 Ill. 509, in discussing the extent and scope of the authority of the court “to take evidence” under the aforesaid statutory provision it was said at pp. 515-516:

“Upon such review the court is given power to hear the entire matter de novo, or appoint a referee to hear it and report with findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review. The liberality of review is a departure from that allowed by common law proceedings on certiorari to administrative boards.”

We are impelled to hold that under the facts and circumstances of the instant case and the law applicable thereto it is necessary for the superior court on its review of the decision of the zoning board of appeals “to hear the entire matter de novo or appoint a referee to hear it.”

For the reasons stated herein the judgment order of the superior court of Cook county is reversed in its entirety and the cause is remanded with directions that the entire matter be heard de novo by said court or that a referee be appointed to hear it and that such further proceedings be had as- are requisite for the proper disposition of the writ of certiorari issued to review.the decision of the zoning board of appeals.

Judgment order reversed and cause remanded with directions.

Friend, P. J., and Scanlan, J., concur.


text:
    Mary Mowrey, Appellee, v. Byron J. Mowrey and Hazeltine Electronics Corporation, Defendants. Byron J. Mowrey, Appellant.
    Gen. No. 43,427.

      Opinion filed February 14, 1946.
    Released for publication February 26, 1946.
    Seymour Rady, of Chicago, for appellant.
    Michael A. Romano and F. Harold Bennett, both of Chicago, for appellee.
   Mr. Justice Sullivan

delivered the opinion of the court.

Plaintiff, Mary Mowrey, filed a complaint for divorce against her husband, Byron J. Mowrey, who was a nonresident of Illinois, and obtained service upon him by publication. Thereafter she filed an amended complaint in which she made the Hazeltine Electronics Corporation, the employer of her husband, an additional party defendant and asked that said Hazeltine Electronics Corporation (hereinafter for convenience sometimes referred to as Hazeltine) “out of the salary, bonuses, or other funds now accrued in its hands, or which may hereafter accrue belonging to the defendant Byron J. Mowrey, be required to pay over and deliver to plaintiff such weekly or by-monthly sum or sums as this Court may determine to be fair and equitable as maintenance for the children of said Byron J. Mowrey and to pay over and deliver to plaintiff out of said funds such sum or sums as this Court may determine to be fair and equitable as and for plaintiff’s costs and fees to her attorneys. . . .”

While Hazeltine’s motion to dismiss the amended complaint as to it was pending and undisposed of, plaintiff was granted a decree of divorce on the ground of desertion and awarded the custody of the two minor children of herself and Mowrey. Subsequently, on June 14, 1944, on plaintiff’s motion and verified petition, an order was entered which denied Hazeltine’s motion to dismiss the amended complaint as to it and restrained and enjoined the Hazeltine Electronics Corporation “from paying over to the defendant Byron J. Mowrey out of his weekly earnings as an employee of said company, as they shall become due and payable to him, a sum of thirty-five ($35.00) dollars per week, and that said defendant Hazeltine Electronics Company shall retain and accumulate this weekly sum of thirty-five ($35.00) dollars out of. such earnings of the defendant Byron J. Mowrey with said company until the further order of this court.”

On July 7, 1944 plaintiff filed a petition which, after reciting the history of the proceedings up to that time, including the entry of the decree and the injunctional order, alleged that “by reason of the foregoing a substantial sum has accrued and accumulated in the hands of the defendant Hazeltine Electronics Company belonging to the defendant Byron J. Mowrey from which sum this Court can and should order a proper amount paid over and delivered to the plaintiff as and for her alimony, -child maintenance, costs of this proceeding and fees to plaintiff’s attorneys.” This petition concluded with the prayer that “an order be entered herein directing the defendant Hazeltine Electronics Company, out of the funds accrued and accumulated in its hands and belonging to the defendant Byron J. Mowrey, [to] pay such sum or sums of money as this Court shall find to be fair and equitable as and for plaintiff’s alimony, child maintenance, costs of this proceeding and fees to plaintiff’s attorneys. . . .”

After the hearing on plaintiff’s foregoing petition had been continued several times Hazeltine filed an answer to same on January 6,1945, in which it averred that from June 14, 1944, when the injunctional order was entered, until November 27, 1944, it had accumulated $910 by withholding $35 per week out of the earnings of the defendant, Byron J. Mowrey, as directed by said restraining order; that Mowrey had not been in its employ since November 27, 1944; and that it neither owed nor paid him anything since said date. <,

On January 12,1945 Mowrey filed a special and limited appearance for the sole purpose of presenting a motion to dissolve the injunctional order theretofore entered on June 14, 1944, “for the reason that the Court did not have jurisdiction of this defendant, nor of any earnings of this person subsequent to the aforesaid date.”

On February 13, 1945 the trial court entered an order which decreed as follows:

“That the motion of the defendant, Byron J. Mowrey, to vacate the injunctional order heretofore entered herein against the defendant, Hazeltine Electronics Company, be and the same is hereby denied;
“That the motion of plaintiff, Mary Mowrey, to strike the special appearance of the defendant, Byron J. Mowrey, be and the same is hereby denied;
‘ That plaintiff, Mary Mowrey, be and she is hereby allowed the sum of $15.00 per week as and for the support and maintenance of the two children of the parties, and that said allowance be and the same is hereby made nunc pro tunc as of July 7, 1944, in accordance with the order of this Court that date entered;
‘ ‘ That plaintiff, Mary Mowrey, be and she is hereby allowed the further sum of $445.00 as and for fees to her attorneys;
“That the sums now due plaintiff, Mary Mowrey, under this order, to-wit: $910.00 be paid over to her by the defendant, Byron J. Mowrey, within 3 days from the date of this order, or upon his failure so to do, then the defendant, Hazeltine Electronics Company, be and it is hereby ordered and directed to pay to plaintiff, Mary Mowrey, said sum of $910.00 out of the funds now in its hands and belonging to the defendant, Byron J. Mowrey."

Defendant, Byron J. Mowrey, appeals from the foregoing decretal order.

It is contended that “since no personal service was obtained on the defendant,- Byron J. Mowrey, and since no specific property or chose in action belonging to Byron J. Mowrey in esse or in actual existence, located in the State of Illinois, was attached or reached by any process of the court, the court had no jurisdiction to enter the order of injunction complained of or the order appealed from."

The real question presented for our determination is whether a court of equity may in a divorce proceeding, for the purpose of compelling the support and maintenance of the minor children of the parties, order the sequestration of the future earnings or salary of a nonresident defendant husband who has been served by publication, such salary being payable by his employer within the jurisdiction of the court. In so far as we have been able to ascertain, this precise question has not heretofore been considered or determined by any court of review in this or any other jurisdiction.

It will be noted that the injunctional order directed Mowrey’s employer to withhold $35 weekly from his salary as it “shall become due and payable to him” and to “retain and accumulate” these withholdings of $35 weekly until the further order of the court and that the fund of $910 which the chancellor ordered paid to plaintiff for the support and maintenance of the two minor children and for fees for her solicitor was accumulated by the defendant’s employer solely from Mowrey’s future earnings.

It is of course agreed that when there is no personal service upon a defendant in a divorce case and no appearance by him the court is without jurisdiction to enter a personal decree against him for the payment of alimony, maintenance of minor children, solicitor’s fees or court costs. (Proctor v. Proctor, 215 Ill. 275.) It is also the rule that constructive service of process upon a nonresident defendant in a proceeding in rem against or concerning specific property of such defendant within the jurisdiction of the court will enable the court to render a decree which is binding upon such property. (Wilson v. Smart, 324 Ill. 276.) In the Wilson case the court said at p. 281:

“Although a Court is powerless to enter a personal decree based solely on constructive service or process against a non-resident defendant, yet it has power to deal with his property within the court’s territorial jurisdiction. Substituted service by publication and mailing, or in any other authorized form,, is usually sufficient where the object of the action is to reach and dispose of property, or of some interest in property, within the state. Such service may answer in all actions which are substantially proceedings in rem.”

It is true that in a proceeding in rem, where the service of process on a nonresident defendant has been merely by publication, the property within the jurisdiction of the court which it may reach and sequester is ordinarily property or some interest in property actually in existence. However, in Tuttle v. Gunderson, 254 Ill. App. 552, this court affirmed an order of the trial court entered in a divorce case, wherein the defendant husband was a nonresident and was served by publication, which directed the trustees of a trust fund, said husband being the sole beneficiary of the income therefrom, to “sequester from said income of said trust estate as the same comes into the hands of said trustees the sum of One Hundred Dollars per week, and pay the same over to said complainant, Agnes Tuttle, in installments convenient to said trustees.” In the Tuttle case the property ordered sequestered was not actually in existence but was a portion of the income of a trust fund which would come “into the hands” of the trustees in futuro. While the factual situation in the Tuttle case was different from that in this case, we think that the holding in that case that future income might be reached and sequestered applies with equal force here. There the father of the defendant husband left a will in which he provided for the establishment of a trust fund of $250,000, the defendant to receive the entire income therefrom, amounting to about $15,000 a year, until he was 50 years old. The parties were married during the lifetime of the testator and before he executed the last codicil to his will creating the trust estate. That case was decided by this court on the theory that the defendant’s wife and children had an equitable interest in the income of the trust fund to the extent of their support and maintenance because the testator unquestionably intended by .his will to provide for their support as well as that of his son out of said income. In concluding his opinion in the Tuttle case Mr. Justice Scanlan said at pp. 568-569: “The chancellor, in the order, was dealing solely with the property of the defendant, and it is the law that courts of equity have jurisdiction in divorce proceedings, in the absence of personal service upon or appearance by a defendant, to deal with property of the defendant in the jurisdiction of the court through a decree in rem.” There is this analogy between the Tuttle case and the instant case. In that case the trust fund was actually in existence when the order of sequestration was entered and said order directed that part of the income from said trust fund be sequestered as it accrued. In this case defendant’s property in his work or position, as will be hereinafter shown, was actually in existence at the time the order of sequestration was entered and said order directed that part of his earnings from said position be sequestered as such earnings accrued.

This brings us to the consideration of the question as to whether defendant’s job or position constituted property. It is asserted in Mowrey’s "brief that “counsel for defendant has not been able to find any case which holds that a job, or the right thereto, is property. ’ ’ There are numerous authorities that hold that a man’s labor or right to labor is property. In Frorer v. People, 141 Ill. 171, the Supreme Court declared unconstitutional certain sections of “An Act to provide for the payment of wages in lawful money, and to prohibit the truck system, and to prevent deduction from wages, except for lawful money actually advanced.” In the opinion filed in that case Mr. Justice Scholfield quoted with approval from State v. Goodwill, 33 W. Va. 179, wherein it was stated (p. 183):

“The property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands; and to hinder .him from employing these in what manner he may think proper, without injury to his neighbor, is a plain violation of this most sacred property.”

In Braceville Coal Co. v. People, 147 Ill. 66, the Supreme Court in holding unconstitutional an “Act to provide for the weekly payment of wages by corporations,” stated at p. 71: “Labor is the primary foundation of all wealth. The property which each one has in his own labor is the common heritage . . . .”

In Mallin v. Wenham, 209 Ill. 252, in holding that an assignment of wages to be earned in the future under an existing employment, even though the employment is for an indefinite time, is not against public policy and is valid if made for a valuable consideration and untainted with fraud, the court said at p. 254: “It is true, such employment was not of any definite duration, and appellant might abandon the same at any time or his employer might discharge him. The subject matter of the contract had but a potential existence, but it was such a property. right as might legally be disposed of.”

In Massie v. Cessna, 239 Ill. 352, wherein the Supreme Court held invalid a legislative enactment of 1905, entitled “An Act in relation to the assignment of wages, income or salary, ’ ’ it was said at p. 358: ‘ ‘ The right to labor for and to render services to another, and the right to dispose of the compensation to be received for so doing, are property rights within, the meaning of the language just quoted from the constitution [section 2 of article 2 of the constitution of this State, which provides that ‘no person shall be deprived of life, liberty or property without due process of law’].”

From the foregoing authorities it conclusively appears that the right to labor is a property right and that the property which every man has in his own labor is the highest form of property. Labor in its ordinary acceptation is synonymous with employment, job or position and when it is said that a man has property in his own labor, such property includes not only his labor itself but what it produces by way of wages or salary. It will be noted that the decision in Mallin v. Wenham, supra, justifies the right of a wage earner, to assign his future wages upon the theory that they constitute a property right that might be. legally disposed of, even though they had but a potential existence. Since the defendant in the instant case had control of his future earnings to the extent that he could have disposed of them by assignment, how then can it be said that the portion of his salary that his employer was ordered to sequester and accumulate was not such a property right or interest in property as a court of equity could reach and dispose of to enforce the support and maintenance of his children? Earnings were bound to accrue from his position as long as he remained therein. Since the property which defendant had in his position was in existence at the time the order of sequestration was entered and was within the jurisdiction of the court and since, as we have already held, a man’s property in his labor includes not only his labor itself but the emoluments thereof, we can conceive of no sound reason why defendant’s salary, payable as it was, within the jurisdiction of the court .could not be subjected to the support and maintenance of his minor children.

Defendant contends that in the absence of personal service upon or appearance by the defendant the trial court had no authority to include the first of the following alternative directions in its decretal order: “that the sums now due plaintiff, Mary Mowrey, under this order, to-wit: $910 be paid over to her by the defendant, Byron J. Mowrey, within 3 days from the date of this order, or upon his failure so to do, then the defendant, Hazeltine Electronics Company, be and it is hereby ordered and directed to pay to plaintiff, Mary Mowrey, said sum of $910 out of the funds now in its hands and belonging to the defendant, Byron J. Mowrey.” In other words defendant claims that the trial court had no authority in the absence of personal service or his appearance to direct him to personally pay plaintiff the $910 involved herein and that this direction rendered the decretal order a personal decree rather than a decree in rem. This contention is completely answered in Cox v. Cox, 192 Ill. App. 286, where the court considered the identical question. In that case it was said at p. 295:

“Such a decree is not a decree, in personam but is a decree in rem. . . . Even if the decree in terms, orders the principal defendant to pay the amount found to be due to complainant within a specific time, or that in default thereof, the property of such defendant be sold to satisfy the same, the alternative feature of such a decree preserves its character as a decree in rem and does not make it a personal money decree against the defendant.”

We are impelled to hold that the decretal order was properly entered and it will therefore be affirmed.

Decretal order affirmed.

Scanlan, J., concurs.

Friend, P. J., dissents.