[No. 23166. Department Two. July 21, 1931.]
In the Matter of the Estate of A. E. HARRINGTON
Deceased.
In Re Proceedings for Contempt Against HARVE H.
PHIPPS. «1»
[1] CONTEMPT (10, 16) - DISOBEDIENCE OF MANDATE - REFUSAL OF
PAYMENT OF MONEY - PROCEEDINGS - PARTIES. A coercive
proceeding instituted in probate to compel an attorney
to restore to the estate money which he had unprofessionally
induced his client to loan to him before qualifying as
administratrix, and resulting in punishment by way of fine
and imprisonment, is a criminal contempt proceeding, which
by Rem. Comp. Stat., SS 1054, must be prosecuted in the
name of the state by the prosecuting attorney, and if on
relation of a private party, with such party as a coplaintiff.
Appeal from an order of the superior court for Spokane
county, Lindsley, J., entered December 18, 1930,
adjudging a party guilty of contempt of court. Reversed.
R. L. Campbell, Powell & Herman, and Richard S.
Munter, for appellant.
Chas. W. Greenough and A. O. Colburn, for respondent.
1 Reported in 1 P.2d 850.
IN RE HARRINGTON'S ESTATE. 517
July 1931 Opinion Per MILLARD, J.
MILLARD, J. - Harve H. Phipps, an attorney at law,
was retained December 28, 1928, by Mary Harrington
to probate the estate of that lady's deceased husband,
Aura E. Harrington. The estate consisted of
securities, principally bonds, of the value of approximately
twenty thousand dollars. There were, in addition to
the widow, three adult children entitled to share in the
estate. The children assigned all of their interest in
the estate to their mother. Mrs. Harrington was duly
appointed administratrix of the estate by an order of
the superior court of Spokane county and her bond
fixed at two thousand dollars. Though she filed her
oath as administratrix, bond was not given and she did
not qualify as administratrix until September 14, 1929.
Mr. Phipps was in financial difficulties. He
requested Mrs. Harrington to lend to him fifteen
hundred dollars, suggesting at the same time that she
confer with her son Elmer concerning the matter. The
conference was had. On June 3, 1929, on his unsecured
note payable six months after date with interest at
eight per cent per annum, Mrs. Harrington made the
loan of fifteen hundred dollars to Mr. Phipps. Certain
of the securities of the estate were sold in order to
obtain the money to lend to Mr. Phipps. No inventory
of the estate had been filed, as required by the statute.
Application was not made to the court for approval of
such disposition of the assets of the estate.
The note matured in December, 1929. Mr. Phipps
could not pay it. Dissatisfied with Mr. Phipps, Mrs.
Harrington caused her present attorney to be
substituted in his place. On February 26, 1930, the
administratrix, through her attorney, obtained five hundred
and sixty dollars from Mr. Phipps to be applied to
payment of the note. On August 11, 1930, the
administratrix, in cause entitled, "In the Matter of the Estate
518 IN RE HARRINGTON'S ESTATE.
Opinion Per MILLARD, J. 163 Wash.
of Aura E. Harrington, deceased," filed a petition reciting
the foregoing facts, and prayed that Mr. Phipps
be required to return the borrowed money he was
wrongfully withholding and which he refused to repay.
Hearing was had on the order on Mr. Phipps to
show cause why he should not be compelled to restore
to the estate the money he received from the administratrix.
Mr. Phipps urged as an excuse his then
present inability to return the borrowed money. By
formal order the court directed Mr. Phipps to restore
the money to the estate on or before November 1, 1930.
With that order Mr. Phipps did not comply, nor did
he file in the cause any excuse for his non-compliance
with the court's order.
On November 29, 1930, on application of the attorney
for the administratrix, Mr. Phipps was ordered
to show cause on December 9, 1930, why he should not
be punished for contempt for his neglect and refusal
to comply with the order to restore to the estate the
money he had borrowed therefrom. As a result of the
hearing had December 18, 1930, the cause being entitled,
"In the Matter of the Estate of A. E. Harrington,
deceased. In Re Proceedings for Contempt
against Harve H. Phipps, Respondent," Mr. Phipps
was adjudged guilty of contempt and, as a punishment
therefor, he was fined one hundred dollars and committed
to the county jail to there remain until the fine
was paid. The court's findings and order read as
follows:
"The said Harve H. Phipps appeared personally
and filed certain affidavits and testified orally, again
urging his present inability to comply with the order
of the court requiring him to return said moneys to
said estate, admitting the facts as recited and his
neglect and omissions in connection with the proper
administration of said estate, and urging his good
IN RE HARRINGTON'S ESTATE. 519
July 1931 Opinion Per MILLARD, J.
intentions to ultimately, if humanly possible, repay and
return said moneys to said estate.
"And the court being now fully advised, finds that
the said Harve H. Phipps in obtaining a loan from the
administratrix of the funds of said estate by his own
solicitation and upon his advice, before the
administratrix was qualified to act as such, and without
disclosing to said administratrix his financial standing or
his liabilities already incurred, and without applying
for or obtaining from the court an order authorizing
such loan, did act unethically, unprofessionally and in
violation of his duties and obligations as an attorney
in his relations to his client and to the court, and
perpetrated a fraud upon his client; and
"That such acts and conduct constitutes a willful
and gross neglect of his duty as an attorney in his
proper relation with his client and toward the court;
and
"An unlawful interference with the proceedings in
the court looking to the proper administration of said
estate; and
"That his acts and conduct in the premises, and his
neglect and refusal to comply with or obey the order
of the court requiring him to return and repay to said
estate the moneys so obtained by him constitutes a
contempt of this court, of which the said Harve H. Phipps
is adjudged to be guilty.
"And the court being unable to find that the said
Harve H. Phipps has at this time property or money
from which he can now repay the said moneys to said
estate, the court orders as punishment for the contempt
of which the said Harve H. Phipps is hereby
adjudged to be guilty, that he pay a fine of One Hundred
Dollars, and the costs of this proceeding, and
that he be imprisoned in the Spokane county jail until
such fine and costs are paid, or until otherwise discharged
according to law."
Mr. Phipps has appealed.
[1] This is a contempt proceeding. It was
instituted to punish the appellant for disobedience of the
court's order. It is criminal and punitive in its nature.
520 IN RE HARRINGTON'S ESTATE.
Opinion Per MILLARD, J. 163 Wash.
For violation of the order to restore to the estate the
money he had borrowed therefrom, the court found
the appellant guilty of contempt, fined him one hundred
dollars and costs, and committed him to prison to there
remain until such fine and costs were paid.
"Criminal contempts, being offenses directed against
the dignity and authority of the court, are offenses
against organized society, which, although they may
arise in the course of private litigation, are not a part
thereof, but raise an issue between the public and the
accused and are, therefore, criminal and punitive in
their nature." 13 C. J., SS 7, p. 7.
The proceeding being criminal in its nature - the object
of the proceeding was punishment - the state is
the real prosecutor, and under our statute the
proceeding should have been brought in the name of the state.
"In the proceeding for a contempt, the state is the
plaintiff. In all cases of public interest, the
proceeding may be prosecuted by the prosecuting attorney on
behalf of the state, and in all cases where the
proceeding is commenced upon the relation of a private party,
such party shall be deemed a coplaintiff with the
state." Rem. Comp. Stat., SS 1054.
In Trullinger v. Howe, 58 Ore. 73, 113 Pac. 4, it was
held under a contempt statute, which is word for word
the same as our statute (SS 1054, supra), that the proceeding
must be instituted in the name of the state.
The court said:
"The apparent reason for this statutory requirement
is that, when a decree has been rendered by a
court of this State, the State is interested in the
enforcement of its provisions, and in seeing that no
person is prosecuted for contempt in disobeying such
decree, except in a proper case. Contempt proceedings,
if civil, as in the case at bar, should be instituted in
the name of the State upon the relation of a private
party. This defect could have been cured. by amendment
at any time before trial: State ex rel. Downing,
IN RE HARRINGTON'S ESTATE. 521
July 1931 Opinion Per MILLARD, J.
40 Ore. 314 (58 Pac. 863; 66 Pac. 917). No attempt to
amend, however, was made in this case."
While the court could have proceeded coercively, and
made the appellant's disobedience a civil contempt,
that was not done. Imprisonment of one for refusal
to obey a lawful order of the court to pay over money
which he has collected in the course of his professional
duty is not imprisonment for debt.
"Imprisonment under an attachment for contempt,
to compel obedience by an officer of court to a lawful
order to pay over money which he has collected in the
course of his official or professional duty, is not
imprisonment for debt. It is sound disciplinary dealing
with an unruly member of the forensic household. One
who lives and moves within the precincts of the court
misbehaves, to the injury of a person who has trusted
him, and whose confidence he has abused, and the court
orders him to make redress. He refuses, and the court,
as the minister of law, chastens him by imprisonment,
and endeavors to coerce obedience. It is true, he is a
debtor; but he is more than a debtor - he is an assistant
in the affairs of justice, and as such, bears a peculiar
and special relation to the law. Through that
relation the court acts upon him, treating him, not as a
mere debtor who will not pay, but as a domestic of the
law who refuses to obey his master." Smith v. McLendon,
59 Ga. 523.
This is a criminal contempt proceeding, hence should
have been brought, as the statute directs, in the name
of the state.
The judgment is reversed.
TOLMAN, C. J., BEELER, MAIN, and BEALS, JJ., concur.