People ex rel. Post v. Grant, 13 Civ. Proc. R. 233 (N.Y. 1883)

When a court has personal jurisdiction over a party in a civil action, it retains that jurisdiction to enforce the judgment, and an order to show cause for contempt for failure to comply with the judgment may be served on the party’s attorney, rather than requiring personal service on the party themselves.

Summary

This case addresses the issue of proper service in a civil contempt proceeding brought to enforce a judgment. The defendant, Grant, was ordered to convey property to the plaintiffs. He failed to comply, claiming a prior mortgage foreclosure prevented him. An order to show cause why he should not be held in contempt was served on his attorney, not him personally. The court held that personal service of the order to show cause was not required because the court already had jurisdiction over Grant from the underlying action, and service on his attorney was sufficient. This contrasts with criminal contempt, where personal notice is required.

Facts

The plaintiffs obtained a judgment for specific performance against the defendant, Grant, ordering him to convey certain premises.

Grant had fraudulently conveyed the premises to another party, who was also named as a defendant.

A certified copy of the judgment was personally served on Grant, requiring him to appear before a referee and convey the property.

Grant failed to appear but his counsel appeared and offered an affidavit stating that, prior to the judgment, a mortgage on the premises had been foreclosed, making it impossible for Grant to convey the property.

The referee rejected the affidavit and reported Grant’s non-compliance.

An order to show cause was issued, directing Grant to show cause why he should not be punished for contempt. This order was served on Grant’s attorney, not on Grant personally.

Grant claimed he had no personal knowledge of this order until after the order for his imprisonment was issued.

Procedural History

The Special Term adjudged Grant guilty of contempt and ordered his imprisonment.

Grant moved to set aside the order of commitment, which was denied by the Special Term.

The General Term reversed the Special Term’s order and discharged Grant from imprisonment.

The plaintiffs appealed to the New York Court of Appeals from the General Term’s order.

Issue(s)

Whether personal service upon the defendant of the order to show cause, with the affidavits upon which it was granted, was necessary to hold the defendant in contempt for failure to comply with a judgment in a civil action.

Holding

No, because when the court has obtained jurisdiction of the person of the defendant in the action, it retains that jurisdiction for all purposes of enforcing the judgment, and the order to show cause was properly served on the defendant’s attorney.

Court’s Reasoning

The court distinguished between criminal contempts and civil contempts, noting that civil contempt proceedings are used to enforce civil remedies. In such cases, the defaulting party has already had the opportunity to contest their liability.

The court reasoned that the proceeding to enforce the judgment is essentially an execution of the judgment, similar to an execution against a person in an action of tort, where imprisonment can result without further opportunity to show cause.

The statute governing contempt proceedings does not specify how the order to show cause should be served. Therefore, the court applied the general practice of the court, which allows for service on the attorney of the party in an ongoing action.

The court emphasized that the papers that brought the party into contempt were the certified copy of the judgment and the referee’s summons requiring the defendant to appear, which were personally served. Grant’s refusal to comply with these constituted the contempt.

The court also rejected the argument that the order to show cause was defective because it referred to the issuance of an attachment, finding that this did not mislead the defendant.

Finally, the court stated that interrogatories were not required in this type of proceeding, and that the court retained jurisdiction over the defendant’s person for the purpose of enforcing the judgment. The court stated, “The court having obtained jurisdiction of the person of the defendant in the action, retains that jurisdiction for all purposes of enforcing the judgment, until its requirements are fully performed and executed.”