THE PEOPLE, ex rel, BRUNETT against DUTCHER

THE PEOPLE, ex rel, BRUNETT against DUTCHER. Supreme Court, Sixth District, General Term; July, 1867. Contempt.—Disobeying Subpcena.—Poweks oe County Judge. A county judge cannot punish for contempt, in refusing to obey a subpcena to appear and testify before him, which is issued horn the Supreme Court, and tested in the name of one of its justices. Nor can he punish for contempt, in refusing to attend pursuant to subpoena issued in his name, whether signed by him or not. The proper method of obtaining the attendance of a witness before a county judge, upon a hearing in supplementary proceedings, is by a subpoena issued out of the court in which the judgment is obtained; and disobedience to such subpoena should be tried and punished by that court. Appeals from two orders. The relator, Elizabeth Brunett, obtained a judgment in the supreme court against John Butcher, on which proceedings supplementary to execution were commenced before the county judge of Otsego, by whom it was ordered that the defendant appear before a referee to be examined concerning his property, and that the evidence of such party and of such witnesses as might be offered should be reported to said county judge. As a part of the proceedings on such reference, the relator’s attorney issued a subpoena in due form, in the supreme court, tested in the name of Justice Balcom, and signed by the attorney and county clerk, directed to the two appellants, requiring them to appear at a time and place named, on such reference, to testify and give evidence therein; which subpoena was duly served upon the appellants and their fees paid. They did not attend, and the proper proof was made to authorize an attachment. At the same time a new subpoena was made out and signed by the relator’s attorney and county clerk, substantially the same as the first, except that it was tested in the name of E. E. Ferry, county judge of Otsego county, but not signed by him, which was duly served upon each of the appellants, but they again made default; and upon due proofs made, the county judge of Otsego county issued an attachment against them, and upon the hearing thereon they were each held guilty of a contempt of court in not obeying said subpoena, and each ordered to pay a fine of $62 50, and stand committed, &e. These appeals were taken Bom these two orders. E. M. Harris, for the appellants. D. C. Bates, for the respondent. [MAJORITY — By the Court.—Boardman, J.] By the Court.—Boardman, J. The sole question in this case is that of jurisdiction. Had the county judge jurisdiction to punish as for a contempt the disobedience of these subpoenas ? It is practically conceded, and is doubtless true, that he had no right to punish for disobeying the first subpoena, which was regularly issued from the supreme court, and tested in the name of one of its justices; it was a “contempt of the court out of which the subpoena issued,” that is, the supreme court (3 Rev. Stat., 5 ed., 683, § 57). Such was the view taken of the case by the county judge, and he rests his conviction upon the second subpoena, tested in his own name, treating it as an order; citing sections 295 and 296 of the Code as his authority. Section 295 says that witnesses may be required to appear, &c., in the same manner as upon the trial of an issue; and section 296, that the witness may be required to attend before the judge or before a referee, &o. The manner in which witnesses are required to attend upon the trial of an issue is not by an order of the judge, it is only by subpoena, except in peculiar cases specially provided for by law. It seems to me clear that the Code by those sections provides for witness is being subpoenaed in the usual manner, with which the judge has nothing to do. I will not say that a judge may not order or summons a witness to appear before himself, or a referee, in these cases ; but if such a power is recognized by the Code, I do not think the second subpoena can be held to be such order or summons. It is not signed by the judge or issued by his direction or authority. (Code, § 400.) In all orders made out of court (as this would be), the judge signs the order. That is the only evidence of its validity. But I do not think such an order one of those provided for in section 302. Ther'e are various kinds of orders that may be made by the 'judge or referee in these proceedings, to which this section properly applies, but there is nothing which satisfies me that an order or summons for a witness may be issued by the judge. If he has no such power, then he had no jurisdiction to adjudge these parties in contempt. If he had the power, I think he did not exercise it, and the same result consequently follows. (2 Abb. Pr., 82.). I believe a subpoena is the true and proper process for procuring the attendance of witnesses; that it should issue out of the court in which' the judgment is obtained; and that any disobedience of such subpoena should be tried and punished by the court out of which the subpoena issued. (19 How. Pr., 560, and cases cited; 3 Rev. Stat., 5 Ed., 849, § 1.) The orders appealed from should be reversed with $10 costs in each case.