Court Records of Keely's Trial and
Incarceration
(typos from original document)
This Certiorari.
John McQ-ahren, for plaintiff.
P. H. Campbell, for defendant in error.
June 11,1888. Opinion by Rice, P. J.
There are no irregularities on the face of this record sufficient to
warrant a reversal of the judgment on ctrtiorari sued out after the
expiration of twenty days. The transcript shows that on January
11,1888, both parties appeared, and, after hearing, the justice held
the case under advisement until January 14, 1888, at nine o'clock, A.
M., at which time he entered judgment for the plaintiff. The defendant
testifies that the justice did not adjourn the case to my definite
time, but that, after the conclusion of the hearing, he promised her
and her counsel to notify the latter of his conclusion in the matter,
which he failed to do. There are exceptional cases in which, to prevent
injustice, the Court will receive parol testimony in contradiction of
the record. One of these is where the justice makes up a false record;
but where this is alleged the evidence should be such as to leave no
reasonable doubt of the fact. Here the justice testifies, in support of
the record and in direct contradiction of the defendant, that after the
trial, in the presence of the attorneys and parties, he gave notice
that he would hold the case under advisement until January 14. He also
denies that he promised to give notice as alleged by the defendant.
We therefore, have on the one side the uncorroborated oath of an
interested party, and on the other a record, presumed. prima facie, to
have been made up correctly, and the oath of the magistrate, presumed
to be impartial and disinterested, in support of it. The Court would
not be justified in overturning the judgment where the allegation of
misconduct on the part of the justice is so seriously in doubt. It is
our plain duty to decide the case upon the record as it stands, and to
leave the party alleging misconduct to pursue the ordinary legal remedy.
The exceptions are overruled, and the judgment affirmed.
—Jf. Kulp. Rep.
(Common
C. P. No. 3, OF PHILADELPHIA CO.
In the matter of the Commitment of John W. Keely.
Equity — Records — Docket entries not records—Decrees—Evidence tJtat
suit properly brought—Completion of record ly Court.
The Court will complete its record without the application of the
parties, They have the right to ask the action of the Court in this
respect.
Decrees of Court are evidence conclusive that the subject of the
decrees have been properly brought before the Court.
Records are the papers filed upon which the Court has acted, and which
set forth the action of the Court.
Docket entries are the minutes of the Pro- thonotary, and form no part
of the records.
At the opening of the court on Saturday, February 2d, Mr. Shields said
he desired to make a motion to complete the record in the case Wilson
vs. Keely.
Jndyf Finlrtter : We have considered this matter, and yesterday filed
an opinion expressive of our views, without the application of the
parties. They however, have the right to make such suggestions for our
consideration as they think proper. We will, therefore, entertain the
motion.
Mr. SJiieltls: I ask leave to file of record this letter from
defendant's counsel to us as fixing the date of the motion to dissolve
the special injunction which was made by defendant. The letter is as
follows :
Bennet Wilson vs. John W. Keely.
C. P. 3. S. 87. No. 372. In Equity.
Gentlemen: Please take notice that the defendant herein will on
Saturday next, January 21st inst., at 10 o'clock a. m., or as soon
thereafter as counsel can be heard in the Court of Common Pleas No. 3
for the City and County of Philadelphia, move the said Court for an
order to dissolve the preliminary injunction heretofore granted in said
cause.
J. Jos. Murphy,
Chas. B. Collier,
For defendant.
Jan 18, 1888.
To Rufus E. Shapley, A. S. L. Shields, Strawbridge & Taylor, Esqs.,
Attorneys for complainant.
Mr. Shields: I desire to have placed formally upon the minutes the
order of court of September 23, 1888, modifying the order of April 7,
1888, for inspection, which appears on the record certified to the
Supreme Court.
The motion was allowed.
February 1, 1889. Opinion by Fin- Letter, P. J.
The opinions filed by the Justices of the Supreme Court in the above
matter seem to be based upon a misconception of the true proceedings,
and in reliance upon facts not appearing in the record, and which never
had existence.
Respect for that tribunal therefore requires us to show wherein they
have been misled ; and a proper regard for our own will excuse the
desire to free ourselves from the reproach of irregularity.
From the opinions filed by the learned Court it is apparent that the
order to in sped was a proper one if made after an issue was raised,
and could have been enforced by attachment and imprisonment.
Justice Mitchell says: " It was stated without challenge at the
argument that the relator had made a motion to dissolve the special
injunction before the order of April 7th, 1888, and the concluding
sentence of the opinion of the learned Judge indicates that such was
the fact, and that the order was made with special reference to the
hearing on that motion. If that motion was before us I should be of
opinion that the inspection directed by the Court was within the
regular power of a Court of Equity, especially when it was concurred in
by the relator himself for several months, nominally complied with
until he found it was to be a real examination, which was to bring his
discovery to a genuine test before a competent mechanical tribunal."
Chief Justice Paxson says : " The order of April 7th, was made by which
the defendant in advance of any issue was not only required to exhibit
his machine, but also to operate it and explain the mode of its
construction and operation, although it clearly appears that it would
require considerable expense to clean the machine, put it together and
operate it."
The learned Judge cannot have had his attention called to the fact that
the order referred to was modified, and Mr. Keely was relieved from
operating the machine. The order is in the relator's paper book, page
31, as follows: "That the experts shall meet again with notice to Mr.
Keely, and shall make as full an examination in the presence of Mr.
Keely as they can of the machine and the things connected with it up to
the point of putting it in actual operation, and then, if that cannot
be done because Mr. Keely has not the money, let the experts report to
us up to that time what they have done."
In this case the defendant Had filed a demurrer, and a motion to
dissolve the special injunction, which was heard with the motion for
inspection March 14. Upon each of these three questions affidavits
which appear of record were presented and made the bases of the decree
of the Court. This evidence, moreover, raised the issue of the
similarity of the machines, and upon that issue the defendant demanded
the judgment of the Court.
The decision of the Supreme Court ap pears to be based also upon an
error of one of the clerks of the Prothonotary. The Chief Justice says:
"The motion to dissolve was made more than three months after the order
of April 7th, as appears by the docket entries."
It should be clearly manifest from reading the record, that the motion
to dissolve was made before April 7th, and a decree thereon filed upon
that day as follows :
"The demurrer is overruled with leave to answer; the order for
inspection is allowed ; upon the return thereof the motion to dissolve
the special injunction will be determined."
This decree is indorsed filed April 7th, 1888.
It cannot be doubted that a decree which determines a question is
evidence conclusive that the question has been presented in a proper
manner, either by writing filed, or by a motion made at bar.
Decrees of Court should stand alone. Strong in their inherent strength,
and the unquestioned faith which the profession and the judiciary have
accorded to them, their force is weakened by argument or evidence.
It is with great reluctance therefore that we yield to the temptation
to appear to verify our decree by evidence.
Had Mr. Keely then made the motion to dissolve the injunction before
our order os April 7th ?
On pages 7 and 8 of Mr. Keely's paper book we find the following: " He
also entered a rule for an inspection of the Keely Motor. The defendant
having interposed a demurrer to the bill, and also having entered a
rule to dissolve the special injunction, which was supported by
numerous affidavits, and argument having been had upon the questions
presented, the court, on the 16th day of March, 1888, filed an opinion
in the following words, to wit:
On page 10 the decree is set out as follows: "The demurrer is overruled
with leave to answer. The order for inspection is allowed ; upon the
return thereof the motion to dissolve the special injunction will be
determined."
In Mr. Wilson's paper book the same facts are set out. It is likewise
reported, not only that Mr. Shapley forcibly urged them in argument,
but also that they were admitted by Mr. Keely's counsel in open court.
It appears then from the record; from the decree of the court; from the
paper books; from the argument of Mr. Shapley; from the admission of
Mr. Keely's counsel, and from Justice Mitchell's opinion, that the
motion to dissolve was made before the order of inspection of April 7th.
Doubtless the learned Chief Justice was misled by that portion of Mr.
Keely's paper book wherein is set out the docket entries of the
Prothonotary's clerk. On page 3, under the head of "Docket Entries,"
there is the following entry : " October 25, 1888. Rule to dissolve
injunction against John W. Keely."
It is scarcely necessary to say that the records of causes are the
papers filed therein upon which the court has acted.
and which set forth the action of the court; and that docket extries
are merely short minutes made by the clerks of the Pro- thonotary to
indicate the steps taken, and form no part of the records.
Commonwealth ex Relatione John W. Keely
vs. Howard Perkins, Superintendent of
the Philadelphia County Prison.
Contempt— Commitment for—Jurisdiction— Preliminary injunction— Motion
to dissolve— Order of Court against defendant before issue joined not
enforceaHe by attachment.
Upon a bill iu equity, by one claiming to be the assignee of the
defendant's machine or device, to restrain defendant from assigning or
selling the machine, &c., the Court granted a preliminary
injunction and subsequently made an order requiring the defendant to
exhibit, operate and explain his machine to plaintiff and experts
appointed by the Court, for the purposes of the hearing and
adjudication of the case. Afterwards the Court committed the defendant
for contempt for disobedience of this order.
Held: on habeas corpus, that at the time of said order no answer was
filed, and the order having been made in advance of issue joined, was
improvident, and could not be enforced by attachment.
Semble: that a committal for contempt should set forth the nature of
the contempt and such facts as show jurisdiction.
Mitchell, J.. concurs, on the ground that the record does not show a
motion to dissolve the injunction pending at the time of the order
complained of.
Charles B. Collier, J. Jos. Murphy and Wayne Mac- Veayli, Esqs., for
Keely, the appellant.
Metsrs. Strawbridge <f- Taylor, and A. .S'. L. Shieds and Rufus E.
Shapley, Esqs., for appellee.
January 28, 1889. Opinion by Pax- Sox, C. J.
This was a writ of Habeas Corpus. The relator complains that he is
unlawfully restrained of his liberty by the Keeper of the Philadelphia
County Prison. The respondent makes return that he holds the relator by
virtue of the following commitment:
" Be it remembered that on 17th day of November, 1888, on motion of
-, Esquire, the Court ordered, and now the said John W. Keely having
been brought into Court by the attachment issued in these proceedings,
and having been required by the Court to purge himself of the contempt
of which he is convict, or show cause why he should not be further
dealt with as to the Court may appear proper, and the said John W.
Keely not having purged himself of said contempt, and not having shown
cause why he should not be further dealt with. After hearing the said
John W. Keely, and after full consideration, it is decreed and adjudged
that for the said contempt the said John W. Keely shall be committed to
the county prison, to be there kept and confined untill he shall have
purged himself of said contempt, and until he shall have been legally
discharged from custody."
Upon the presentation of the petition with a copy of said commitment to
Justice Sterrett, in vacation, he allowed the writ returnable before
him at Chambers. Upon the return of the writ the hearing was continued
to the 12th of January, before the Court in bane, and the relator was
admitted to bail in the meantime. This was the course pursued in
Commonwealth ex rel. Torrey vs. Retner, 92 Pa., 372. See also Hammel
Vk. Bishop, 9 W., 416, and Commonwealth vs. Newton, 1 Grant, 453.
We might well discharge the relator upon the insufficiency of the
commitment. It is not only vague, but it wholly fails to show the
nature of the contempt for which he was committed. As we do not review
such cases upon the merits, and only inquire into them so far as to
ascertain whether the Court had the jurisdiction or power to make the
order, it is manifest that in many instances the part would be
remediless unless the commitment sets forth such facts as show
jurisdiction. We are not asked, however, to decide the case upon
technical grounds.
A certiorari having been issued to the Court below, we have before us
the record of the case of Wilson v*. Keely, and from it we learn that
the alleged contempt consists in a refusal to obey an interlocutory
order. If the Court had the power to
make the order, we have no doubt it possessed the power to enforce it
by attachment, and if necessary, by imprisonment. It is true, under the
Act of June 16,1836, the punishment of imprisonment for contempt is
limited to such contempts as shall be committed in open Court. It is
also true that obedience to the lawful process of the Court may be
enforced by attachment. Imprisonment for contempt committed in open
Court is imposed as a punishment, and is for a definite period.
Imprisonment for disobedience to the process of the Court is not so
much for a punishment as to enforce such process, and ceases the moment
the party purges himself of his contempt by obedience. The power in
both instances is essential to the existence of the Court. A Court that
has not the power to protect itself from public insult, or to compel
obedience to its lawful process, would be beneath contempt. As to the
authority of the Court to enforce obedience to its process by
attachment, I refer to Tom's Appeal, 50 Pa., 285; Com'th vs. Reed, 59
Id., 425, in which the subject is fully discussed.
If the Court below had jurisdiction of the parties and the subject
matter, and the order in question was lawfully made, it possessed the
power to enforce it by attachment. It is almost needless to say that
the converse of this proposition ia equally true. This involves a brief
examination of the nature of the proceedings.
Bennett C. Wilson filed his bill in the court below against John W.
Keely, claiming to be the assignee of said Keely of a certain principle
or machine known (by Keely) as a reacting vibrating machine, being an
independent motor or self-acting, having a revolving globe and other
appliances, the said globe being the centre for the dispensation of
said motion and power, and when all the actual power is produced,
dependent only on itself for this production and reaction unlimited.
The bill avers that since said assignment the defendant has received
divers large sums of money from the exhibition of, and sale of
interests in, and from the unlawful use of said invention, and prays
discovery relative thereto; that the defendant has neglected and
refused to permit complainant "to have access to and examine the
drawings, models and machines embodying the invention referred to in
the arrangement hereinbefore named in the possession and under the
control of said defendant;" that complainant believes that the
defendant, unless restrained by an order of this court, trill sell and
assign said invention to others, and dismantle and alter said motor.
The prayers for relief, briefly stated, are, that the defendant be
enjoined from removing the machines or models known as the "Keely
Motor" from the shops where the same are now located, from selling,
assigning or using the same, and particularly that the defendant be
compelled to forwith "exhibit to your orator and permit him to inspect
all models, machines, drawings and descriptions in the possession of
the defendant, of the invention referred to in the above named
assignment, and known as the Keely Motor."
Upon the filing of the bill, the Court below granted an ex parte
injunction, which was afterwards continued until the further order of
the Court. A demurrer was filed by the defendant, which appears to have
been overruled, with leave to answer over; a commission of experts was
appointed to examine the machine [See 5 Lancaster Law Review 167], who
reported to the Court on October 20th, 1888. A rule for an attachment
against the defendant on October 24, 1888, and upon the 25th of the
same month the defendant took a rule to dissolve the injunction. I have
referred to only a few of the docket entries; they are very numerous,
and indicate an especially active, hostile litigation, culminating,
November 17, 1888, in the commitment of the defendant to the county
prison for contempt. The said commitment was based upon disobedience to
the order of Court of April 7, 1888. The order was as follows:
"And now, April 7,1888,in accordance with the opinion heretofore filed
in this case, it is hereby ordered by the Court that the defendant, the
said John W. Keely, shall, within thirty days, exhibit to the said
plaintiff, his attorneys, and to Charles Cresson, Thomas Shaw, Prof.
William D. Marks, and Jacob Naylor, Esq., who are hereby appointed by
the Court as experts, the inventions, machines or devices referred to
in the plaintiff's bill, and now known as the 'Keely Motor,' and shall
then and there, in their presence, operate the same, or cause them to
be operated, and explain the modes of constructing and operating to
them. And the said experts are hereby authorized and directed to make
such an examination of said machines as will enable them to inform the
Court as to their identity in construction, principle or operation,
with the invention discribed in the complainant's bill as having been
assigned him in 1869 by the respondent, the said complainant giving the
said experts such a particular description of the last mentioned
invention as may be necessary to enable the comparison to be made : and
the said experts shall further make such drawings of the machine known
as the " Keely Motor" as they may consider necessary for the
information of the Court, and report jointly or severally; and it is
further ordered that the information obtained by this inspection by the
complainant and his counsel, or by the said experts, shall not be used
for any other purpose than for the proper hearing and adjudication of
the present proceeding."
At the time this order was made the cause was not at issue. No answer
had been filed, and of course there was no examiner or master. At this
stage no legal testimony could have been taken. The plaintiff had
obtained his special injunction, which was duly continued within the
five days. There was then no further step which the plaintiff could
properly take except to put the case at issue. After issue joined, an
examiner could have been appointed, and the proofs taken in an orderly
manner. Instead of so proceeding, a commission of experts was appointed
to examine the defendant's machine, and the order of April 7th was
made, by which the defendant, in advance of any issue, was not only
required to exhibit his machine, but also to operate it and explain the
mode of its construction and operation, although it clearly appeared
that it would require considerable expense to clean the machine, put it
together and operate it. The defendant appears to have been willing to
exhibit it, and in point of fact did so. In view of this, I have not
considered it necessary to review the authorities upon the question of
the power of the court to compel him to exhibit his machine before
issue joined. That he might have been compelled to do so at a proper
stage of the cause is conceded. But to make an order not only to
exhibit, but to operate it, the practical effect of which was to wring
from him his defence in advance of any issue joined, was an excessive
and improvident exercise of chancery powers. It is the more remarkarble
from the fact that the plaintiff's case, as shown by the exhibits and
drawings, was sealed up in an envelope and retained by the court,
access to the same being not only denied to the defendant, but even to
the experts appointed by the court.
It is not necessary to discuss the question, how far the motion to
dissolve the injunction justified the proceedings. Upon that motion the
defendant was the actor, and if his affidavits failed to satisfy the
court that the injunction should be dissolved, his motion would
necessarily fall. Aside from this, the motion to dissolve was made more
than three months after the order of April 7th, as appears by the
docket entries.
We are of opinion that the order referred to was improvidently made. It
follows that the learned court had no power to enforce it by attachment.
The relator is discharged.
Concurring opinion by Mitchkll, J.
It waa stated without challenge at the argument that the relator had
made a motion to dissolve the injunction before the order of April 7th,
1888, and the concluding sentence of the opinion of the learned
President of the Court below indicates that such was the fact, and that
the order was made with special reference to a hearing on that motion.
If that fact were before us, I should be of opinion that the inspection
directed by the order was within the regular powers of a Court of
equity, especially where it was concurred in by the relator himself for
several months, nominally complied with, and not objected to until he
found it was to be a real examination, which was to bring his discovery
to a genuine test before a competent mechanical tribunal.
But the record, unfortunately, does not show any application to
dissolve the injunction until October 25th, several months after the
order for inspection ; and as, on a hearing of this kind, we can review
only the regularity of the proceedings upon their face, we are bound by
the dates as they appear on the record.
Upon this ground, I concur in the opinion of the Court that the order
for inspection was premature, and the commitment for contempt in not
obeying it was therefore improvidently issued.
Keely vs. Wilson.
January 28,1889. Opinion bv Paxsox- C. J.
For the reasons given in Commonwealth ex relatione John W. Keely v».
The Superintendent of the Philadelphia County Prison, ante, the order
of the Court below, of date of November 17th, 1888, committing the said
John W. Keely to the county prison for contempt, is reversed and set
aside.—Legal Intelligencer.
Lancaster Law Review.
Vol. VI.] MONDAY, APRIL 1,1889. [No. 18,
Common
C. P. OF LANCASTER COUNTY.
