¶1This is a motion filed May 22, 1875, to dismiss an appeal from the decree of a single judge filed in the clerk's office June 25, 1870, while cap. 692 of Public Laws, passed March 15, 1867, was in force, by which all hearings in equity might be before a single judge with a right of appeal to the full court.
¶2The respondent, Durant, had entered an appearance by his attorneys, Thomas A. Jenckes and Charles C. Van Zandt; but not having answered, an order to take the bill pro confesso was entered under the rules in the clerk's office, February 8, 1869.
¶3At that time a petition for removal of the cause to the United States Circuit Court, which had been filed in the state court October, 1868, was pending. The state court, December 28, 1868, denied the petition.1 An appeal from this denial was taken January 2, 1869, to the full court, which appeal was not withdrawn until June 16, 1869. While these proceedings were had in the state court, the papers for removing the case had been filed in the United States Circuit Court, November 19, 1868, and in September, 1869, the question of removal was decided adversely by Judge Clifford. *199
¶4May 18, 1869, while the cases seem to have been on the docket in both courts, a motion was filed in the state court to rescind the order to take the bill pro confesso.
¶5August 22, 1868, on the filing of the bill an injunction had been granted without notice against the respondent, Durant, to restrain him, until further order of the court, from transferring, pledging, c., certain stocks, and from receiving any dividends thereon, which was served on him the same day.
¶6On December 31, 1869, an order was made for Durant to produce certain books and papers, of which personal service was made January 7, 1870.
¶71870, January 5, Durant was allowed sixty days to answer.
¶81870, January 5, a motion was made founded on affidavits to commit Durant for violation of the injunction of August 22, 1868, and January 15, a motion for attachment for not producing the books and papers, as ordered December 31, and a hearing was had January 29, 1870.
¶9February 7, an order was entered, the court being of opinion that Durant was guilty of contempt, that he should stand committed February 17, unless he produced the bonds, certificates of stocks, and showed cause, c.
¶101870, March 21, a further hearing was had, Durant having filed an affidavit, c. By order of March 22, entered by the clerk, April 4, the time for compliance was extended to April 7, — then to be absolute.
¶111870, May 18, the complainants moved to proceed to decree, and it was argued at Newport, Charles C. Van Zandt representing Durant.
¶121870, May 27, a decree was made (entered the 28th) that the defendants having appeared, but not answered, the bill be taken as confessed; that Durant pay into court certain moneys; and that, until said payment, all the stocks and bonds of said defendant corporation, held by said Durant, with dividends, shall be deemed and taken, so far as paid for with said moneys, the property of the Credit Mobilier and its stockholders; that the cause be referred to James Tillinghast, as master, to take an account. On his report all money shall be paid into the court, to be apportioned and paid to the parties to whom it may belong; in the mean time, to be a lien on all stocks, c., and all injunctions and other orders to continue in force. *200
¶131870, June 25, a claim of appeal to the full court from this as a final decree was filed in the clerk's office.
¶14After this was filed the following proceedings were had before the same single judge.
¶151870, August 16, an attachment was ordered against Durant for breach of orders of February 7, and April 4, 1870, and breach of injunction of August 22, 1868, which was served August 17.
¶161870, September 3, Durant had filed a motion to set aside the decree pro confesso, for leave to answer (and filed an answer as an affidavit), and to dissolve the injunction of August 22, 1868, and orders of February 7, April 4, and August 16, and the orders as to arrest and contempt.
¶17The hearing was commenced at Newport, Saturday, September 3, 1870, present: Peckham, for complainants; and Jenckes VanZandt, for respondents, and was adjourned to Monday, whenBradley also attended for the complainants.
¶18The complainants then, September 5, filed a motion for attachment for disobeying the order of December 31, 1869, relating to the books and papers, and a motion for attachment for disobeying orders of February 7 and April 4, 1870, relating to the bonds, c.
¶19After hearing counsel, an order was made September 5, for interrogatories, to which answers were filed September 7, as also a motion for discharge from custody.
¶20After many hearings, affidavits, answers to interrogatories, and after argument as to the security to be given and its amount, on which Messrs. Jenckes Bradley were heard at length, an order was made on September 22 to vacate the attachment, and all orders as to contempt, on Durant's giving certain security on or before October 1, which was not done.
¶21On April 7, 1874, Mr. Bradley, for the complainants, gave notice to the respondents' attorney of intention to proceed; and (a commission having in the mean time been taken out January 25, 1875, under the decree, and the hearing commenced before the master) March 26, 1875, the parties met before the court, and the hearing was adjourned; Durant to file affidavits, and a time to be set for further hearing.
¶22Two motions made by Durant to purge his contempt have since been heard before the full court, and both dismissed, *201
¶23This motion to dismiss the appeal was also heard before the full court: Peckham Bradley, for complainant; Honey, VanZandt Payne, for respondents.
¶24It was contended that the appeal was irregularly taken, because Durant was then in contempt; that he could not prosecute his appeal if allowed; and that it would embarrass the proceedings before the master, and should therefore be taken from the files or dismissed.
¶25Ordinarily a person in contempt cannot be heard except to purge himself, or to set aside the order for irregularity.
¶26It has been argued that a party is not actually in contempt until process issued.
¶27This misunderstanding has grown out of the fact that our practice is in many respects different from the English. In the English Chancery the practice of taking bills pro confesso was confined to a very few cases. The courts in order to make a binding decree, were obliged to use a very complicated process to compel an appearance, and then to compel an answer. Any failure to appear or to answer in time was treated as a contempt; but such contempt might ordinarily be purged, as of course, on doing the act required and paying costs. It is to these cases, termed common or ordinary contempts, that the doctrine referred to applies, and not to special or extraordinary contempt, disobedience of special order, c. 1 Daniel Chanc. Pr. 490; 2 Fowler Excheq. Pr. 402; Turner's Exch. Pr. 103.
¶28But in this case the appeal is given by statute. It is from the preliminary, though if not appealed from, final decision of one judge to the full bench.
¶29We consider it as a matter of right, and must therefore allow it. Although the party if in contempt still remains so, he is enabled to remove the hearing of any motion he is entitled to make before a new tribunal, upon whom he can rely as not being prejudiced against him from the effect of previous hearings.
¶30The motion to dismiss the appeal is therefore denied.
¶31Motion denied.
¶33Subsequently the motion to purge from contempt or for permission to defend the suit was renewed before the full court, and was heard in Providence, March 2 and 3, and June 23 and 24, 1876.*202