Opinion
Docket No. 10780.
Decided February 28, 1972.
Appeal from Oakland, James S. Thorburn, J. Submitted Division 2 January 11, 1972, at Detroit. (Docket No. 10780.) Decided February 28, 1972.
Thomas Rosender was found in contempt of court. Defendant appeals. Order of contempt set aside.
Dell, Shantz, Booker Schulte, for plaintiff Madeline M. Thiel.
Thomas Rosender, in propria persona.
On December 14, 1970, as part of a broader order involving litigation in which he was the attorney for one of the parties, Thomas Rosender was held in contempt of court for his failure to appear at a hearing noticed for June 17, 1970. On appeal Rosender asserts that the contempt order was improperly entered against him, inasmuch as no affidavit was presented to the court as a foundation for the proceedings.
The order stated in pertinent part: "It is further ordered that Thomas Rosender, as attorney for the defendant, because of his negligence and because of his contempt of the order of the court in not appearing before the court and having no lawful excuse whatsoever for not so appearing shall pay the sum of $250.00 forthwith as an attorney fee to James H. Booker, attorney for the plaintiff."
MCLA 600.1711; MSA 27A.1711 provides in part:
"(2) When any contempt is committed other than in the immediate view and presence of the court, the court may punish it by fine or imprisonment, or both, after proof of the facts charged has been made by affidavit or other method and opportunity has been given to defend."
See, also, GCR 1963, 760.1.
The alleged contempt, if committed, was committed outside the immediate view and presence of the court. In re Henry, 25 Mich. App. 45, 53 (1970). Since no affidavit of facts setting forth the nature of the charge was made, the order of contempt was improperly issued. In re Henry, supra; In re Collins, 329 Mich. 192 (1950). The order of contempt of court, herein considered, is therefore set aside.