Millis v. State

Citation106 Miss. 131,63 So. 344
Decision Date17 November 1913
Docket Number16,982
CourtUnited States State Supreme Court of Mississippi
PartiesF. E. MILLIS v. STATE

APPEAL from the chancery court of Simpson county, HON. R. E. SHEEHY Chancellor.

F. E Millis was imprisoned for contempt of court in failing to pay alimony and appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

A. M Edwards and Russell & Russell, for appellant.

The first point we desire to call the court's attention to is the one raised by the assistant attorney-general, in which he contends that this is a civil contempt and the punishment coercive in its nature, and for that reason the chief justice erred in granting the appeal under section 39, Code 1906. Our answer to this proposition is, that the chief justice did not err in granting the appeal under this section, in fact section 39 is the only section that authorizes an appeal in contempt cases at all, and without this section we couldn't appeal, and certainly that was not the intention of the legislature when they enacted this section, that is to provide and authorize an appeal in criminal and not civil contempts, in fact under the code of Mississippi all contempts are made criminal, and punishable as such, as will be seen by reference to sections 560 and 999, Code 1906. We submit that the Indiana case cited by the attorney-general is not analogous to the one at bar, for the reason that we are governed by statute and it doesn't appear that the supreme court of Indiana was, and if it was, the laws of that state may be quite different from the laws of our state.

We earnestly contend that the very language of section 39 makes all contempts under the laws of our state criminal, the very fact the bonds therein provided for are required to be made payable to the state of Mississippi, and the appellant required to give an appearance bond, prove conclusively that they are criminal under our laws, and notwithstanding this fact, we contend that section 39 was designed, and in fact does apply, to every contempt proceeding arising in the courts of our state. It says: "A person ordered by any tribunal, except the supreme court, to be punished for a contempt, may appeal to the court to which other cases are appealable from said tribunal, etc." It doesn't undertake to classify any certain kind of cases, but includes every contempt case that may be instituted in the courts of our state. The attorney-general undertakes to argue that it only applies to that class of cases that are criminal in their nature, and not civil, but if that was the scope and purpose of the section it would have said so, in fact it says exactly to the contrary. We contend that the proper way to raise the validity of our appeal is by motion, and this the attorney-general has not done, but has elected to raise it in his brief, which evidently shows that he hasn't a great deal of faith in his, the contention that section 39 applies only to certain kind of contempt cases.

We submit that there couldn't be but one doubt about the validity of our appeal and that is the fact that we appealed on a pauper's affidavit and we think inasmuch as section 39 makes all contempt cases criminal that there is no doubt about that, and that we can either give bond, as provided by section 39, or make the pauper's affidavit as provided by section 62 or deposit money to cover the costs, etc., as provided by section 63.

We contend that appellant could have prosecuted a valid appeal by following the provisions of either of these sections as to the costs, that being all he had to provide for, as no fine was imposed, and it is to be noted that when section 39 refers to a supersedeas bond it has reference to the fine and not the costs.

We contend that it is the policy of the law of this state to guarantee to every person convicted of any sort of offense the right of appeal, and section 39 certainly guarantees this right to every person convicted of contempt, and this too, regardless of the kind of contempt that it may be, and when this right is once given, any person convicted of a particular class, that is, misdemeanor, felony, or cases carrying capital punishment, then that person is entitled to all the rights and remedies given to any other person convicted of a similar offense carrying similar punishment.

It has been held by the supreme court of our own state in a cause cited in 4 Sm. & M. 751, that a contempt of court is criminal, and inasmuch as contempts are criminal under the laws of our state, there couldn't be any doubt about the validity of appellant's appeal, as section 62 applies to all criminal cases. But the attorney-general has not raised the point and we can not avail ourselves of section 62 and appeal on a pauper's affidavit, but he takes the position that we cannot appeal under sections 39, 62 nor 63 either, but that if we appeal at all, we must appeal in the manner provided for civil cases. He seems to overlook the fact that the section authorizing appeals in civil cases, wouldn't authorize an appeal in contempt proceedings, as a contempt is only appealable where it is specially authorized by statute, and inasmuch as section 39 is the only section we have authorizing appeals from contempt proceedings, we must conclude that it was the intention of the legislature to make this section apply to all contempt appeals. In fact, the section plainly says so, and inasmuch as this section makes all contempts committed in this state criminal, it seems to us useless to prolong the argument of this point further.

Appellee contends that the burden was on appellant to establish his inability to comply with the order of the court. We admit that this is true ordinarily, but in the instant case, the prosecution assumed the burden itself, and undertook to prove by Mr. Sorenson that appellant owned property, etc., with which he could pay said alimony, but Mr. Sorenson's testimony shows clearly that appellant didn't own any interest whatever in the teams, nor had he earned any money, in fact he hadn't quite made expenses. So we submit that under this proof that appellant is entitled to be discharged.

The attorney-general contends in his brief that where a person has been ordered to pay alimony and is unable to do so, and is out of employment, that the court can commit such a person to jail for his failure to work, but we say that if he is committed to jail it will be under our vagrant statute, and not for a contempt of court, as we don't believe that our supreme court will subscribe to any such doctrine or approve any such holding, regardless of what other states have held on this point. We contend that the better doctrine has been announced in the Webb case, 140 Ala. 262, 37 So. 96, and 103 Am. St. Rep. 30. In passing from this point we want to say that our vagrant statute is criminal, and if a person is fined under this statute it must be for a definite sum, and if he is imprisoned it must be for a definite time.

It is true that section 1673 does authorize the court to require a bond for the payment of alimony, but the court in the instant case did not make any such provision in the decree and if it had made such provision, and appellant had failed to have executed bond due to his inability to give such a bond, he would not have been guilty of a contempt of court, and if he had refused to have executed the bond, the court then would not have been authorized to imprison appellant, and if it had, it would have had to be for a definite time.

Hilton & Hilton, for appellee.

Appellant assigns as the third error, that the court erred in not discharging the defendant when the state had closed its evidence. In answer to this assignment, we do not understand appellant's contention with reference to same, as he has not referred to any of the facts or the law that would justify such action on the part of the chancellor, especially in view of the fact that no such motion was made by appellant. We presume that their position is that the testimony, as given by the state, was not sufficient to justify a conviction for contempt. It would be a reiteration and a rehashing of the testimony to again call the court's attention to it. But by reading the record, or reading that part of the testimony that has been referred to in this brief, will be sufficient to show that the court did not err in this particular. Also, it seems that counsel for appellant has overlooked that rule of law which holds that the burden, to show his inability to comply with the decree of the court in paying alimony, is up to him. See 14 Cyc. 801, subheaded "B" and note 56 thereunder.

So, that when the state showed that the defendant had not complied with the order, then it developed upon the defendant to exculpate himself from contempt and to show that his action therein was not a contemptuous or wilful act, but merely one of inability to pay.

The two other assignments of errors, numbered four and five, are as follows: The court erred in not discharging the defendant of its own motion, when all the evidence was submitted. Fifth the finding of the chancellor was contrary to the law and evidence in the case. These two assignments or errors will be argued together, as they embrace practically the same contention. The case of Adair v. Gilmore, 17 S. R. 544 and 555, referred to in appellant's brief, is not in point here, for the reason that it does not involve the question of paying out money at all. In the case, supra, the answer of the person cited for contempt, showed that as to uncollected notes, the decree of the court was performed; that as to the money collected, it was used in the payment of attorney's fees, court costs, debts and expenses of...

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14 cases
  • Mizell v. Mizell
    • United States
    • Mississippi Supreme Court
    • 26 de fevereiro de 1998
    ...has wilfully and deliberately ignored the order of the court." Cooper v. Keyes, 510 So.2d 518, 519 (Miss.1987), citing Millis v. State, 106 Miss. 131, 63 So. 344 (1913). It is a defense to a contempt proceeding that the person was not guilty of willful or deliberate violations of a prior ju......
  • In re Williamson
    • United States
    • Mississippi Supreme Court
    • 5 de dezembro de 2002
    ...court. Brame v. State, 755 So.2d 1090, 1093 (Miss.2000) (quoting Cooper v. Keyes, 510 So.2d 518, 519 (Miss.1987) citing Millis v. State, 106 Miss. 131, 63 So. 344 (1913)). Here, there was no clear order by the trial court specifying the role and limitations of Miller's attendance at the dep......
  • Sides v. Pittman
    • United States
    • Mississippi Supreme Court
    • 16 de outubro de 1933
    ... ... v. McGill, 101 Kan. 324, 166. P. 501 ... Appellee ... is not guilty of laches ... It is ... well settled in our state that where the mother is awarded ... custody of minor children and afterwards supports and ... maintains said children, where the decree awarding ... ...
  • Riddick v. Riddick
    • United States
    • Mississippi Court of Appeals
    • 14 de dezembro de 2004
    ...has willfully and deliberately ignored an order of the court. Cooper v. Keyes, 510 So.2d 518, 519 (Miss.1987) (citing Millis v. State, 106 Miss. 131, 63 So. 344 (1913)). In this case, we are unable to find any willful refusals of Roger to comply with his agreement to pay college expenses. H......
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