# Windham Bank v. Tomaszczyk > Ohio Supreme Court · June 30, 1971 · 27 Ohio St. 2d 55 URL: https://www.frixlaw.com/law-library/cases/6754697 ## Case - **Full name:** The Windham Bank v. Tomaszczyk - **Court:** Ohio Supreme Court - **Decided:** June 30, 1971 - **Citations:** 27 Ohio St. 2d 55; 56 Ohio Op. 2d 31; 271 N.E.2d 815; 54 A.L.R. 3d 1235; 1971 Ohio LEXIS 475 - **Precedential status:** Published - **Opinion:** Dissent by Stern - **Judges:** Can, Corrigan, Herbeet, Leach, Ptjxcau, Schneider, Stern - **Cited by:** 287 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6754697 ## How later opinions describe it (automated extraction) - explaining differences between civil and criminal contempt ## Opinion text Stern, J., dissenting. In our judicial system, it is within the inherent power of the court to protect its processes against wrongdoing and to punish, as and for contempt, those who may commit such unlawful conduct. Misconduct in law does not, per se, constitute contempt of court. Unlawful conduct, in violation of rights of ownership, does not constitute contempt unless the unlawful conduct consists of doing something which is pro *60 hibited, or in failing to do something which is required, by the terms of a court order. 17 American Jurisprudence 2d 18, Section 13. A recitation of the pertinent facts in this case shows: (1) May 1, 1964, plaintiff filed a first mortgage on the realty involved. (2) Several months later the mortgagee (defendant Tomaszczyk) purchased and installed carpeting and drapery rods. (3) February 26, 1968, plaintiff filed suit to foreclose the mortgage. (4) June 3, 1968, decree of foreclosure entered. (5) June 10, 1968, order of sale issued. (6) July 22,1968, sheriff’s sale had and Ronald Cowan purchased property. (7) July 27 and 28, 1968, defendant removed his personal effects plus the carpeting and drapery rods. On the date that the carpeting and drapes were removed, the sale had not been confirmed to the purchaser. Before the purchaser paid the purchase price he knew that the carpeting and drapes were missing. In fact, the purchaser was on the premises at the time the drapes were being removed from the premises, and he knew that the carpeting had been removed. The proceeding to hold the defendant in contempt was instituted upon oral motion made by the plaintiff bank addressed to the trial court. In order to adjudicate a person in contempt it must be shown that the accused person either partially or completely consummated an unlawful purpose which would transgress the dignity and honor of the court. State, ex rel. Turner, v. Albin (1928), 118 Ohio St. 527 . From the facts presented herein, it is evident that the defendant was adjudged guilty of having committed a civil contempt. Civil contempt has been defined as having a primary purpose to provide a remedy for an injured suitor and to coerce compliance with an order. 17 American Jurisprudence 2d 7, Section 4. *61 In the instant ease, the record does not show that the plaintiff bank had been injured. The bank’s financial interest in the residence was a balance dne on its mortgage of between $15,000 and $16,000. Cowan’s snccessfnl bid was $25,000. The record does not show that Cowan refused to pay the balance dne on the purchase price because the carpets and drapes had been removed. Cowan inspected the property shortly after he bid on it and before the sale was confirmed and the sheriff’s deed delivered to him. Even more than there being no “injured suitor,” there was no showing in the record that any order had been issued by the court prior to the contempt hearing that the carpets and drapes were considered as fixed to the realty and could not be removed therefrom. In the light of the record in this case I agree with the holding in Ex parte Bostwick (1931), 102 Fla. 995 , 136 So. 669 : “ * * * Whatever wrong was committed * * * was not a wrong against the dignity or power of the Circuit Court * * * for doing against which no specific order of the court had been directed.” See, also, 59 Corpus Juris Secundum 1446, Section 770. In Bostwick, the sale had been confirmed and the writ of possession (assistance) had been issued but not complied with by the mortgagor at the time he removed the shrubbery and other property. The Florida case points out that property is not in custodia legis merely because foreclosure sale has been had and writ of assistance issued. In the instant case, the purchaser is not contending that he has been injured; the plaintiff bank has not shown that the defendant was in any manner served, prior to the contempt hearing, with a judicial order that the carpets and drapes were fixed to the realty, and that defendant was enjoined from removing them. I would reverse the judgment of the Court of Appeals and discharge the defendant. Ptjxcau, J., concurs in the foregoing dissenting opinion, --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6754697. Public record. Not legal advice.