Opinion
Decided November 20th, 1930.
1. Petitioner denied leave to file claim with receiver as an alleged creditor of defendant, after order barring creditors, because of inexcusable lack of diligence.
2. Where petitioner, in order to obtain leave of the court to file claim with a receiver as an alleged creditor of insolvent corporation after order barring creditors, presents at one time an affidavit alleging a certain state of facts, and thereafter presents another affidavit alleging a substantially different state of facts, which were untrue and known by him so to be, he is guilty of contempt.
3. Where petitioner, in order to obtain leave of the court to file claims with a receiver as an alleged creditor of insolvent corporation after order barring creditors, well knowing he has no just claims against such corporation, presents to the court an affidavit containing statements false in fact and known by him so to be, and thereafter presents another affidavit containing statements false in fact and known by him so to be, manifestly to deceive the court, he is guilty of contempt.
4. Where, as in the case sub judice, the falsity of statements contained in petitioner's affidavits is not only clearly demonstrated, but is admitted by the petitioner, and constitute perjury, such perjury should be punished as contempt.
5. Where, as in the case sub judice, the petitioner attempted to impose upon the court by two affidavits setting up contradictory statements false in fact and known by him so to be, made with the intention of having the court rely upon them as true, it is immaterial which affidavit (if either) represents true facts, and he is guilty of contempt in facie curiae.
On bill, c. On petition of Franklyn E. Backer for permission to file claim with receiver after order barring creditors, c.
Mr. William A. Kavanagh, for the petitioner.
Mr. Joel Gross, for the receiver.
The petitioner applied for leave to file claims with the receiver, as an alleged creditor of the defendants, after order barring creditors. He presented two affidavits in support of his petition, one dated October 10th and the other October 20th, 1930. Such affidavits contain variances of alleged facts stated therein. Upon my attention being directed thereto I required the petitioner to testify orally with respect to the truth thereof. He appeared with his counsel, was examined, and was afforded ample opportunity to be heard in his own behalf. I am convinced that the petitioner's application should be denied. It is apparent from the proofs herein that the petitioner has no just claim against either of the defendant corporations. If he considered he had a just claim against either corporation he might have presented same to the receiver prior to the making and entry of the order barring creditors. His failure so to do is due to inexcusable lack of diligence. He is the complainant in the suits in which the defendant corporations were adjudged insolvent. He sued as a stockholder. No mention is made in the bill of complaint of his being a creditor. He was an officer of both defendant corporations, and business manager thereof. He has been represented alternately by three different solicitors. No claim was presented to the receiver by him, or in his behalf, by either of the first two solicitors representing him. The petition herein was presented by his present solicitor. It is manifest from the proofs herein that the petitioner, in affidavits filed, wittingly made false statements of alleged claims of indebtedness. Upon being orally examined as to the truth of matters stated in his affidavits as to his alleged claims against the defendant corporations, he admitted the untruthfulness thereof, but endeavored to minimize the effect of his false statements by characterizing same as misstatements. He aggravated his conduct, in my judgment, by explaining that he considered that the defendant corporations were indebted to him, notwithstanding he well knew that the corporations were not indebted to him. He falsely stated he had advanced moneys to and for the defendant corporations. The proofs herein disclose that instead of the petitioner being a creditor of the defendant corporations he is largely indebted to them. It is a serious matter for any person to wittingly attempt to deceive the court. Deception or attempted deception of the court in judicial proceedings has become too common a practice, especially through the medium of ex parte affidavits filed. Courts have been too tolerant in matters of perjury. Where, as in the case sub judice, the perjurious statements by which the petitioner attempted to deceive the court are clearly demonstrated, and admitted by the petitioner, the court would be remiss in its duty if it failed to punish such perjury as contempt. Edwards v. Edwards, 87 N.J. Eq. 546. I am impelled in the instant case to take cognizance of the offense of which the petitioner is guilty and to impose such punishment upon him as may impress him that perjurious statements in affidavits filed with the court will not be wittingly countenanced. I am constrained to take such action herein as will tend to uphold the administration of justice and the dignity of the court, mete out such punishment to the offender as may serve as a deterrent to him and to others against future like offenses, and thereby impress him and others that they cannot trifle with the court. Sachs v. High Clothing Co., 90 N.J. Eq. 545; Edwards v. Edwards, supra.
For the reasons above stated I adjudge the petitioner, Franklyn E. Backer, guilty of perjury, and of having thereby contemned the dignity of this court in facie curiae. I will advise an order that Backer be committed to the common jail of the county of Hudson to be therein confined for a period of thirty days. I will also advise an order denying petitioner's application to file claims with the receiver.