DOYLE v. LONDON GUARANTEE AND ACCIDENT COMPANY, LIMITED.

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.

No. 155. Argued January 11, 1907. Decided February 25, 1907.

An order punishing for contempt made in the progress of the case, when not in the nature of an order in a criminal proceeding is an interlocutory order and to be reviewed only upon appeal from a final decree in the

case.

The Circuit Court of Appeals has no jurisdiction upon writ of error sued out by defendants from an order of the Circuit Court adjudging them guilty of contempt in disobeying an order for production of books and papers, and also adjudging that they produce same and pay costs within a specified period or that in default thereof they pay a fine and be committed.

Bessette v. W. B. Conkey Co., 194 U. S. 324, followed and Matter of Christensen Engineering Co., 194 U. S. 458, distinguished.

Questions certified in 134 Fed. Rep. 125, answered.

THE facts, which involve the jurisdiction of the Circuit Court of appeals to review orders in contempt, are stated in the opinion.

Mr. E. Clinton Rhoads, with whom Mr. John C. Bell was on the brief, for Doyle:

There is no magic about a contempt case which forbids Appellate Courts to rectify a wrong done by the lower court. The only difficulty has been to find the proper machinery. When the United States Circuit Courts of Appeal were established, their appellate jurisdiction included criminal cases. As this proceeding in contempt is a criminal proceeding, that court has jurisdiction. Bessette v. Conkey, 194 U. S. 324; Christensen case, 194 U. S. 458; Alexander case, 201 U. S.

Argument for London Guarantee & Accident Co.

204 U. S.

All cases of contempt are primarily criminal in their nature, and are separable from any litigation to which they are incident..

All cases of disobedience to the orders of a court, which are properly contempts, are criminal cases, and that the term civil contempt is properly applicable to cases which are in substance executions, such as attachments for the payment of money, fines which are merely compensatory in their nature, orders for the payment of alimony, and orders for the payment of sums found to be due in probate courts and in similar cases. New Orleans v. Steamship Co., 20 Wall. 387, 392; Passmore Williamson case, 26 Pa. St. 9.

The appellate court has authority to relieve from a void order. In re Chetwood, 165 U. S. 443; Commonwealth v. Perkins, 124 Pa, St. 36.

A writ of error is the proper method of review. Bullock v. West, 129 Fed. Rep..105; Bessette v. Conkey, 194 U. S. 324.

Mr. Thomas Raeburn White for London Guarantee and Accident Company:

The Circuit Courts of Appeals have jurisdiction to review the action of Circuit or District Courts by writ of error or appeal only after final judgment in the court below. Act of March 3, 1891, ch. 526, 26 Stat. L. 828.

A final judgment or decree is one which leaves nothing further to be done in the case except execution of the judgment of the court. Grant v. Phænix Life Ins. Co., 106 U. S. 429; St. Louis &c. Ry. Co. v. Southern Express Co., 108 U. S. 24; Robinson v. Belt, 56 Fed. Rep. 328.

It matters not that the question sought to be reviewed involves an attack upon the jurisdiction of the lower court, an appeal or writ of error cannot be considered until after the final disposition of the case. McLish v. Roff, 141 U. S. 661.

Contempt proceedings are of two classes, vindicatory and remedial.

In Bessette v. W. B. Conkey Co., 194 U. S. 234, this court fully recognized the distinction between civil and criminal cases. In re Nevitt, 54 C. C. A., 622; S. C., 117 Fed. Rep. 448. Vindicatory contempt proceedings are the only ones reviewable on writ of error by the Circuit Courts of Appeals prior to the termination of the main suit. Bessette v. Conkey, Co., 194 U. S. 324; Matter of Christensen Co., 194 U. S. 458; Alexander v. United States, 201 U. S. 117; Bullock Co. v. Westinghouse Co., 129 Fed. Rep. 105.

Remedial contempt proceedings are a part of the main suit, and can be reviewed on writ of error or appeal only after final judgment in the court below. Hayes v. Fischer, 102 U. S. 121; Bessette v. Conkey, 194 U. S. 324; Heinze v. Butte & Boston Co., 194 U. S. 632; King v. Wooten, 54 Fed. Rep. 612; In re Nevitt, 117 Fed. Rep. 448.

MR. JUSTICE DAY delivered the opinion of the court.

This case is here upon certificate from the Circuit Court of Appeals for the Third Circuit. From the facts stated it appears that William J. Doyle and James G. Doak were adjudged guilty of contempt of court in the Circuit Court of the United States for the Eastern District of Pennsylvania. After the bringing of the action, upon the petition of the London Guarantee and Accident Company, Limited, the plaintiff below, the court made the following order:

"And now, June 25th, 1904, the court orders the defendants. to produce, within twenty days, in the office of the clerk of said court, their pay sheets, time books, cash books and all other books of original entry which contain information as to the amount of compensation paid to employees of themselves or of their subcontractors or of any other persons contemplated in the contracts upon which suit is brought in this case during the period of said contracts as set forth in the petition filed." After that order was made the certificate recites:

"Thereafter the plaintiff presented to the court a petition

alleging disobedience by the defendants of the above order and praying that an attachment issue against them for contempt of court. Thereupon the court granted a rule upon the defendants to show cause why an attachment should not issue against them for contempt of court by reason of their violation and disobedience of said order. To this rule the defendants filed an answer under oath, denying intentional non-compliance with said order and stating that they were not able to produce all the books and papers called for, because upon a thorough search the absent ones could not be found and averring their belief that they were accidentally lost or by mistake were destroyed at a time when alterations were made in their office and a removal of its contents to another place occurred. Subsequently, to wit, on January 3d, 1905, upon the hearing of the rule, the court gave and entered judgment that the 'defendants are guilty of contempt in disobeying the order referred to,' and further adjudged as follows:

"If the defendants produce in the office of the clerk of the Circuit Court on or before January 15th, 1905, the ledger of 1902-4, the pay rolls or time sheets from March to May 28, 1903, and the cash book from May 28 to December 1, 1902, or if they produce the cash book alone, they are ordered to pay no more than the costs accruing upon this motion, including the stenographer's charges, on or before January 20, or in default of such payment to suffer imprisonment in the jail of this county for the period of sixty days. If the foregoing books and papers are not produced on or before January 15, the defendants are ordered to pay a fine of two hundred and fifty dollars, and also the cost accruing upon this motion, including the stenographer's charges, on or before January 20, or in default of such payment to suffer imprisonment in the jail of this county for the period of sixty days."

A writ of error was allowed to the Circuit Court of Appeals. Upon the facts stated the following question was certified to this court:

"Has the Circuit Court of Appeals jurisdiction upon the writ of error sued out by the defendants to review the above recited judgment of January 5th, 1905, adjudging that the defendants are guilty of contempt of court in disobeying the above recited order of court of June 25th, 1904, and imposing upon the defendants a fine of $250.00 on the specified conditions and terms?"

Cases involving the right to review orders of the Federal courts in matters of contempt have been so recently before this court that an extended discussion of the principles involved is unnecessary. Bessette v. W. B. Conkey Company, 194 U. S. 324; Matter of Christensen Eng. Co., 194 U. S. 458; Alexander v. United States, 201 U. S. 117.

In Bessette v. W. B. Conkey Co., supra, a question was certified here from the Circuit Court of Appeals of the Seventh Circuit, involving the jurisdiction of that court to review an order in a contempt proceeding finding the petitioner guilty of contempt for violation of an order of the Circuit Court, and imposing a fine. In that case the subject underwent a full examination and the previous cases in this court were cited and reviewed. As a result of those decisions we deem it settled that an order punishing for contempt made in the progress of the case, when not in the nature of an order in a criminal proceeding, is regarded as interlocutory and to be reviewed only upon appeal from a final decree in the case. Matter of Christensen Eng. Co., 194 U. S. 458. In Bessette v. Conkey Co., supra, it was pointed out that this court had no jurisdiction to review judgments in contempt proceedings criminal in their nature under the power to punish for contempt defined by Congress, 1 Stat. 83, and limited by the act of March 2, 1831. 4 Stat. 497, Rev. Stat. sec. 725.

The right to review a judgment in a contempt proceeding in the Circuit Court of Appeals was derived from the Circuit Court of Appeals act, section 6, of which Mr. Justice Brewer, speaking for the court in the Bessette case, said:

"So when, by section 6 of the Court of Appeals act, the