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in accordance with the testimony of expert witnesses called by both parties. I further find that the defendants have failed to cover this hatchway with suitable material to render it safe within a reasonable time after July 15, 1922, and that by reason of such failure they are in contempt."

This interpretation of the decree was erroneous. The words of the decree are unequivocal and positive to the effect that the hatchway must be removed. The manifest purpose of the decree in the light of the two opinions of the full court was to assure to the plaintiffs freedom of passage over that part of the way occupied by the hatchway, but not to require the defendants to fill with earth the space underneath the hatchway, provided without doing that the passageway could be made safe for the passage of heavy trucks. The right of way of the plaintiffs over the surface of the passageway was to be uninterrupted by the opening of the hatch and its use for the purposes for which a hatchway is commonly used.

[2] As to another ground of complaint urged by the plaintiffs, the single justice found that:

"The defendants have failed to comply with the terms of the decree which ordered them to 'cause that portion of the passageway on the southerly side of said building occupied by a flight of steps leading downward, being 10 feet long by 4 feet wide, by the openwork iron grating near the head of the stairs toward Exeter street covering an open area or air well 4 feet wide and 8 feet long and the curbing or wall which runs around this area, to be filled or covered and strengthened so as to render those parts of the passageway substantially as firm, sound and convenient for passage on foot and by teams and trucks as it was on April 18, 1899, and as reasonably usable for such passage in connection with the rest of the passageway as it was on that date, the level of said portion of the passageway to be so changed as to be made to conform substantially to the level of the passageway on that date, and all structures to be removed so far as necessary to that end.' I find and rule that the defendants have covered by concrete the open space from the head of the stairs toward Exeter street in compliance with the decree; that they maintain the stairway with a cover over it, and also maintain an elevator for lowering and raising trunks and other articles to and from the sidewalk and the basement of the hotel; that this elevator is closed with a cover over it substantially on a level with the sidewalk when not in use; that the stairway and elevator well when closed are covered by steel doors; that these covers, while suitable and sufficient for foot passage, are not of the required thickness and strength to make the passageway safe and convenient for heavy trucks; that the defendants have failed to comply with the decree in not placing over said openings suitable and sufficient doors or covers within a reasonable time from and after July

15. 1922, and are in contempt by reason of such failure. I rule that if safe and sufficient covers are placed over the stairway and elevator well that the decree will be complied with."

Here also there was error in the interpretation of the final decree. In the decision in 239 Mass. 77, 131 N. E. 327, in explaining and delimiting the scope of the words creating the grant and reservation, it was held that they "import an intent of the parties that the entire passageway and not a convenient part of it shall be subject to an easement of passage, of light and air and of drainage," and that evidence of general use of like easements in Boston was immaterial. The second opinion in 242 Mass. 69, 136 N. E. 364, did not purport to modify the general principles of law declared in the first opinion. It merely preserved to the defendants the right to use the land beneath the surface of the right of passage described in the earlier the way in any manner not interfering with

that respect than the principles of law reopinion. The first decree went further in quired. The interpretation of the final decree after the last rescript by the single justice on the petition for contempt, goes to the extent of interfering with the rights of passage of the plaintiffs over the surface of the way as established by the opinions of this

court.

Nevertheless, the defendants were adjudged guilty of contempt for failing to comply with the terms of the final decree after the last rescript. That finding manifestly was sound even in the view of that decree taken by the single justice. The decree of the court adjudged the defendants guilty of contempt and ordered them to "pay a fine of one hundred and fifty dollars ($150) for such contempt, the same to be paid to the complainants to reimburse them for their costs and expenses incurred in this proceeding."

It is urged by the defendants that, even though there was error in the rulings, there is no ground in law for reversal of the decree entered on the petition for contempt. This involves some inquiry into practice.

[3] A writ of error does not lie to correct errors of law in a decree in equity. The words "judgment in a civil action” in G. L. c. 250, § 3, do not include proceedings in equity. "A writ of error lies where the proceedings are according to the course of the common law, but it does not lie in proceedings in equity unless it is authorized by statute. The customary remedy in equity to reverse a final decree for errors of law apparent on the record is by a bill of review." Evans v. Hamlin, 164 Mass. 239, 240, 41 N. E. 267; Nashua & Lowell Railroad v. Boston & Lowell Railroad, 169 Mass. 157, 161, 162, 47 N. E. 606; Mulrey v. Carberry, 204 Mass. 378, 90 N. E. 576. Nothing to the contrary was decided in Home Investment Co. v. Iovieno, 246 Mass. 346, 348, 141 N. E. 78.

It was said by Chief Justice Knowlton in Newton Rubber Works v. De Las Casas, 198 Mass. 156, 157, 84 N. E. 119, that errors of law arising at a hearing on a petition for contempt "are usually presented by a report,

(148 N.E.)

or, if a criminal contempt is alleged, by a writ of error." A citation of supporting authorities follows. White v. White, 233 Mass. 39, 123 N. E. 389. Whether appeal lies from such a decree or whether exceptions may be taken at such a trial has never been decided in this commonwealth, although intimations are to the contrary. Hurley v. Commonwealth, 188 Mass. 443, 444, 74 N. E. 677, 3 Ann. Cas. 757; Kelly v. Morrison, 234 Mass. 382, 125 N. E. 576; De Ferrari v. De Ferrari, 220 Mass. 38, 107 N. E. 404. It has been said to be open to grave doubt whether exceptions lie in proceedings for direct contempt for court. Commonwealth v. McNary, 246 Mass. 46, 48, 140 N. E. 255, 29 A. L. R. 483. A complaint for contempt for violation of an interlocutory or final decree in equity "is really but an incident to the principal suit, and all the papers relating to it should be filed with the other papers in the case." It is irregular to treat such a complaint as a distinct cause. Winslow v. Nayson, 113 Mass. 411, 420. In Cartwright's Case, 114 Mass. 230, 239, which grew out of a receivership proceeding where the receiver misappropriated funds, it was said:

"An application for an attachment for contempt is to be made and filed in the original cause; after the attachment has issued, the proceedings are distinct and are criminal in their nature." Hamlin v. N. Y., N. H. & H. R. Co., 170 Mass. 548, 550, 49 N. E. 922.

The distinction between civil and criminal contempts often has been made, and important results sometimes have been made to turn on that distinction. See, for example, Bessette v. W. B. Conkey Co., 194 U. S. 324, 24 S. Ct. 665, 48 L. Ed. 997; Gompers v. Buck's Stove & Range Co., 221 U. S. 418, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874; In re Nevitt, 117 F. 448, 54 C. C. A. 622; Terminal Railroad Association of St. Louis v. United States, 266 U. S. 17, 27, 45 S. Ct. 5, 69 L. Ed. 150. That distinction has been referred to in some of our decisions;

but the subject has not been fully discussed and under our practice that line of demarcation has not been strictly observed. Fines to the use of the commonwealth and not of the party have been imposed under the forms of civil procedure. Instances of this are Casson v. McIntosh, 199 Mass. 443, 85 N. E. 529; Irving & Casson v. Howlett, 229 Mass. 560, 118 N. E. 901; Stodder v. Rosen Talking Mach. Co., 247 Mass. 60, 141 N. E. 569. Doubtless there are other cases of this sort, which, or some of which, have not come to the full court. It was said in McCann v. Randall, 147 Mass. 81, 90, 17 N. E. 75, 83, 9 Am. St. Rep. 666:

"Proceedings for contempt may be either for the purpose of inflicting punishment upon one who has wilfully disobeyed a lawful order of the court, or for the purpose of obtaining the result which might have been reached by the enforcement of its decree but for the intervention of the wrongful act of the party violating its order, or in appropriate cases for both purposes."

[4] Whatever also may be said about proceedings for contempt, it is plain that they are sui generis in their nature and not strictly either civil or criminal, as those terms commonly are used. Cartwright's Case, 114 Mass. 230; Walton Lunch Co. v. Kearney, 236 Mass. 310, 128 N. E. 429; Myers v. United States, 264 U. S. 95, 44 S. Ct. 272, 68 L. Ed. 577.

[5] The frame of the petition for attachment for contempt, the rulings of the single justice and the form of the decree indicate that that proceeding was designed to enforce the property rights of the plaintiffs and was so treated by the court. The defendants were found guilty of contempt in the very particulars for which the plaintiffs contended and now contend. Manifestly the amount of the fine is not open to revision.

All these considerations lead to the conclusion that the plaintiffs are not entitled to any relief on the present record.

Writ dismissed.

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Where order on petition for contempt was that, unless during period of continuance of case respondent purged himself of contempt, order was to be entered committing him to custody of sheriff until he purged himself, proceeding, whether treated as civil, criminal, partly civil, and partly criminal, or as sui generis, was still pending, and was not ripe for review by writ of error.

2. Appeal and error 5-Writ of error does not lie to correct errors of law in decrees or order in equity; "judgment in civil action."

A writ of error does not lie to correct errors of law in decrees or order in equity; words "judgment in a civil action," in G. L. c. 250, § 3, not referring to proceedings in equity.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Judgment (in Law).]

3. Appeal and error

5-Writ of error not available in equitable proceeding, unless authorized by statute.

A writ of error is not available in proceedings in equity, unless authorized by statute.

4. Criminal law 1023 (2)-Writ of error lies in criminal case only after final judgment. The writ of error lies in a criminal case only after final judgment.

5. Criminal law 1023 (2)-Sentence temporarily suspended or delayed is not "final judg

ment."

Sentence temporarily suspended or delayed by court's action is not, or may not be, the "final judgment" until it becomes operative, so as to support writ of error.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.]

6. Contempt 66(2)-Order defaulting defendant and his surety held not "sentence" or "final judgment."

Where order was entered adjudging defendant in contempt, continuing case, admitting defendant to bail, and providing that, if he failed during period of continuance to purge himself of contempt, he would be committed to sheriff's custody, order subsequently entered, defaulting him and his sureties, was not a "sentence" or "final judgment," supporting writ of error.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Sentence.]

7. Criminal law 1110(1)-Defendant not presenting himself for sentence cannot invoke law to correct errors in record.

Defendant in criminal case, who runs away or is defaulted, and who is not sentenced, can

not invoke aid of law to correct errors in record.

8. Contempt 66(2)-Writ of error does not lie, where contempt proceedings still pending. Where there has been no ending of contempt proceedings in court in which they are pending, writ of error does not lie, and the Supreme Judicial Court will not intervene.

Error to Superior Court, Suffolk County; Franklin T. Hammond, Judge.

Suit by Rebecca Cherry against Israel Cherry. To vacate an order of contempt for violation of injunction, defendant brings error. Writ of error dismissed.

Edw. M. Dangel, and John J. Enright, both of Boston, and J. F. Grimes, for plaintiff in

error.

A. S. Allen and H. S. Davis, both of Boston, for defendant in error.

RUGG, C. J. This is a writ of error. The petition alleges in substance that the defendant in error brought in the superior court a suit in equity wherein she sought to enjoin the plaintiff in error, her husband, from prosecuting divorce proceedings brought by him against her and then pending in a court of the state of Nevada; that issue was joined

in that suit, and that, after a trial in which the judge made full findings to the effect that both parties were and had been for many years domiciled in this commonwealth and that the husband had not acquired in the state of Nevada a domicile sufficient to give the courts of that state jurisdiction over the subject-matter of divorce, a final decree was entered enjoining the defendant, his servants, agents and attorneys, from further prosecuting the action for divorce pending in the court of Nevada. The petition further alleges that a petition for contempt was brought against the plaintiff in error in the superior court in the same cause for the violation of said injunction, wherein the court made an order adjudging him to be in contempt.

Writ of error and writ of scire facias were issued. Pursuant thereto a full copy of the record of the superior court has been returned to this court. The defendant in error answered: (1) A general denial as to the allegations of the petition and the assignments of error therein; and also (2) a plea of "in nullo est erratum." Apparently the defendant in error has raised in truth no issue of fact and relies wholly upon the plea that the record shows no error, except so far as she relies also upon the contention that this court has no jurisdiction. Eliot v. MeCormick, 141 Mass. 194, 6 N. E. 375; Perkins v. Bangs, 206 Mass. 408, 92 N. E. 623.

It is manifest from the transcript of the record of the superior court that the petition for the attachment of contempt was made and filed in the original cause and that the subsequent proceedings thereon were

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

treated as a part of that cause. Case, 114 Mass. 230, 239.

(148 N.E.)

Cartwright's] sistance to the opposite party than in con-
tempt of the court. The order for imprison-
ment in this class of cases, therefore, is not to
vindicate the authority of the law, but is reme-
dial and is intended to coerce the defendant to do
of the complainant. If imprisoned, as aptly
the thing required by the order for the benefit
said in In re Nevitt, 117 F. 451 [54 C. C. A.
6251], 'he carries the keys of his prison in his
own pocket.' He can end the sentence and
discharge himself at any moment by doing
what he had previously refused to do.
The distinction between refusing to do an act
commanded, remedied by imprisonment until
the party performs the required act, and doing
an act forbidden, punished by imprisonment for
a definite term, is sound in principle, and gen-
erally, if not universally, affords a test by
which to determine the character of the pun-

The distinction has been made in other jurisdictions between civil and criminal contempts. It has been referred to in some of our decisions. The occasion has not arisen for this court to discuss that subject with critical analysis and painstaking care. New York Central Railroad v. Ayer, 251 Mass. -, 148 N. E. 567. We do not need to deal with that question in the case at bar. Reference simply is made to a few statements touching the existence of the distinction. In Michaelson v. United States, 266 U. S. 42, 64, 45 S. Ct. 18, 19 (69 L. Ed. 162, 35 A. L. R. 451), it was said:

"The proceeding for criminal contempt, un-ishment." like that for civil contempt, is between the public and the defendant, is an independent proceeding at law, and no part of the original

cause.

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It was said by Chief Justice Taft in Ex parte Grossman, 267 U. S. 87, 45 S. Ct. 332, 334, 69 L. Ed. -:

"It is not the fact of punishment but rather its character and purpose that makes the difference between the two kinds of contempts. For civil contempts, the punishment is remedial and for the benefit of the complainant, and a pardon cannot stop it. For criminal contempts the sentence is punitive in the public interest to vindicate the authority of the court and to deter other like derelictions." Bessette v. Conkey Co., 194 U. S. 324, 24 S. Ct. 665, 48 L. Ed. 997; Matter of Christensen Engineering Co., 194 U. S. 458, 24 S. Ct. 729, 48 L. Ed. 1072; Terminal Railroad Association of St. Louis v.

United States, 266 U. S. 17, 27, 45 S. Ct. 5,

69 L. Ed. 150.

In Union Tool Co. v. Wilson, 259 U. S. 107, 110, 42 S. Ct. 427, 428 (66 L. Ed. 848), it was said:

** * *

in the case at bar was this:
[1] The order on the petition for contempt

"After hearing, the respondent is adjudged in contempt and is ordered into custody of the sheriff, and the case is continued for sentence for two weeks from this day, viz. until the 12th day of December, A. D. 1924, at 4 o'clock in the afternoon, and it is ordered that unless in that period the said respondent purges himself of contempt by taking proper and efficient methods to open and set aside the decree which

he has obtained in the district court of Nevada

against the complainant in this action, an order is to be then entered committing said respondent to the custody of the sheriff of this county, until he shall have taken such proper and efficient methods to open and set aside said decree. In the meanwhile, he is to be admitted to bail in the sum of $2,500 with two sureties for his appearance from day to day and to abide the order of the court."

That order was in form anticipatory nisi. The adjudication of contempt is plain and unequivocal, but there was no final decision on the matter. The direction is that, unless that defendant earlier purges himself of con"Where a fine is imposed partly as compen- tempt, an order "is to be then" at the desigsation to the complainant and partly as pun-nated future date entered, to the effect that ishment, the criminal feature of the order is dominant and fixes its character for purposes of review. In re Merchants' Stock & Grain Co., 223 U. S. 639 [32 S. Ct. 339, 56 L. Ed. 584]."

The circumstance that sentence of imprisonment is imposed does not of itself stamp the contempt as criminal in nature. The whole subject was examined at large in Gompers v. Buck's Stove & Range Co., 221 U. S. 418, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874. It there was said at pages 442, 443 (31 S. Ct. 498):

"If a defendant should refuse to pay alimony, or to surrender property ordered to be turned over to a receiver, or to make a conveyance required by a decree for specific performance, he could be committed until he complied with the order. Unless these were special elements of contumacy, the refusal to pay or to comply with the order is treated as being rather in re

he be committed to the custody of the sheriff, not for a definite time but until he purges himself of contempt. If the case be treated as civil and equitable, it was still pending and a further decree was necessary to end it. Plaisted v. Cooke, 181 Mass. 118, 63 N. E. 132; Loonie v. Wilson, 233 Mass. 420, 423, 124 N. E. 272; O'Brien v. O'Brien, 238 Mass. 403, 407, 131 N. E. 177, and cases there collected. It was not ripe for review as of right in any form.

[2, 3] If the contempt proceeding is civil and equitable in its nature, the plaintiff cannot prevail. A writ of error does not lie to correct errors of law in a decree or order in equity. The words, "judgment in a civil action," in G. L. c. 250, § 3, do not refer to proceedings in equity. The writ of error is not available in proceedings in equity unless authorized by statute. No statute authorizes that writ in a case like the present. Evans v.

Hamlin, 164 Mass. 239, 41 N. E. 267; Mul-
rey v. Carberry, 204 Mass. 378, 90 N. E. 576;
New York Central Railroad v. Ayer, 251
Mass. - 148 N. E. 567.

[4-7] If the contempt proceeding in the case at bar be treated as criminal, the plaintiff cannot prevail. The writ of error lies in

tions argued need not be stated. The court
cannot consider the case.

It follows that the entry must be:
Writ of error dismissed.

CONSTRUCTION CO. v. DUFFY et al.

(No. 18896.)

(Supreme Court of Ohio. June 16, 1925.)

(Syllabus by the Court.)

Admiralty 20-Application to come within Compensation Act not denied, even though services of employé rendered on floating vessels in navigable waters.

a criminal case only after a final judgment. STATE ex rel. CLEVELAND ENGINEERING Cooke, Petitioner, 15 Pick. 234, 237; Commonwealth v. Marsino, 251 Mass., 147 N. E. 859. The case at bar, treated as criminal in nature, had not gone to judgment. Sentence is the final judgment in a criminal case. Commonwealth v. Dascalakis, 246 Mass. 12, 19, 140 N. E. 470, and cases there collected. Sentence temporarily suspended or delayed by action of the court is not, or may not be, the final judgment until it becomes operative. As already pointed out, the order on the petition for contempt was anticipatory nisi. By its terms the case was "continued for sentence" until December 12, 1924, the defendant in the meanwhile being admitted to bail. The record shows that on that date the defendant, plaintiff in error here, did not present himself in court for sentence. On the contrary, it appears that:

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It is manifest that this is not a sentence. It is not a final judgment in the sense in which that term is used in a writ of error. A defendant in a criminal case, who runs away or who suffers himself to be defaulted and who is not sentenced, cannot invoke the aid of the law to correct errors in the rec

ord. Not having been sentenced, he fails to show that he has suffered harm by the alleged errors. If he does not submit himself to sentence as required by law, he is not in a position to ask the correction of errors. The same principle applies if the proceedings for contempt be treated as partly civil and partly criminal, because, as already pointed out, in such circumstances the criminal aspect predominates. Union Tool Co. v. Wilson, 259 U. S. 107, 110, 42 S. Ct. 427, 66

L. Ed. 848.

[8] If the contempt proceedings be regarded as sui generis and neither criminal nor civil, the same result follows. There has been no ending of the contempt proceedings in the court in which they are pending. In these circumstances writ of error does not lie; and this court will not intervene.

It has been frequently said that alleged errors of law may be presented to this court by report. There is no pretense that these questions have been reported.

Where parties desiring to be controlled by the Workmen's Compensation Act have contracted with reference thereto, and its application will not work prejudice to any characteristic features of the general maritime law, or interfere with the proper harmony or uniformity of that law in its international or interstate relations, such application will not be denied, even though the service of the employé is rendered on "floating vessels in navigable waters," engaged in building docks, jetties, dredging, driving piles, laying pipes for gas and water, building water works cribs and similar work.

Mandamus by the State of Ohio, on the relation of the Cleveland Engineering Construction Company, against T. J. Duffy and others, as the Industrial Commission of Ohio. Demurrer to petition overruled.-[By Edi torial Staff].

C. O. Crabbe, Atty. Gen., and R. R. Zurmehly, of Columbus, for defendants. George B. Marty, of Cleveland, for petitioner.

DAY, J. This is an original action in mandamus in which the plaintiff asks that the defendant, the Industrial Commission of Ohio, accept premiums from it, payable into the state insurance fund under the Workmen's Compensation Act for the benefit of their employés, who are employed "on floating vessels in navigable waters." These men are divisible into eight classes:

(1) Men on floating dredges. Employed in dredging for foundations for docks, cribs, and bridges, dredging trenches for installing pipes of brick, concrete, or metal, for water, sewer, or gas, for making, widening, and deepening channels, making fills behind docks, breakwaters, jetties, and similar work.

(2) Pile driver men. While employed on a floating pile driver, in the work of driving piles for foundations, breakwaters, jetties, docks, dry docks, cribs, wharves, water intake cribs, and similar structures.

From whatever aspect the case at bar is viewed, the plaintiff has not put himself in a position to invoke examination of his com- (3) Men on barges and scows. Employed in plaints on writ of error. The other ques-hauling stone, piles, and other materials,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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