Hay v. Hay

Decision Date31 December 1924
Citation40 Idaho 159,232 P. 895
PartiesTHOMAS B. HAY, Petitioner, v. JOSEPHINE HAY and W. F. MCNAUGHTON, Judge of the District Court of the Eighth Judicial District, Defendants
CourtIdaho Supreme Court

WRIT OF REVIEW-SCOPE-JURISDICTIONAL QUESTIONS-DIVORCE ACTION-ORDER FOR SUIT MONEY-NONAPPEALABLE ORDER UNDER C. S., SEC 7243-PROPERTY SETTLEMENT-EFFECT OF ON MOTION FOR SUIT MONEY-DISCRETION OF LOWER COURT-APPEALABLE ORDER NOT SUBJECT TO WRIT OF REVIEW-ORDER FOR CUSTODY OF CHILD-AGREEMENT BETWEEN PARENTS-EFFECT OF ON POWER OF COURT-CONTEMPT PROCEEDING-AFFIDAVIT-SERVICE OF ORDER-DEMAND-PERSONAL KNOWLEDGE-ORDER IN EXCESS OF JURISDICTION.

1. On a writ of review the only question before the court is whether the tribunal in question regularly pursued its lawful authority.

2. On a writ of review the evidence cannot be examined further than to ascertain whether there was proof of jurisdictional facts without which the court had no power to act.

3. An order for suit money and attorney fees pendente lite is not appealable.

4. The appeal mentioned in C. S., sec. 7243, is a direct appeal from the order in question, and not the appeal from the final judgment in which the order may be incidentally reviewed.

5. The existence of a property settlement between husband and wife does not prevent the district court granting the wife suit money and attorney fee in an action for divorce.

6. A motion for suit money and attorney fee in a divorce action is addressed to the sound discretion of the district court.

7. An order restraining a party to a divorce action from alienating or encumbering his property is appealable, and will not be reviewed on a writ of review.

8. The question of the right to custody of a minor child pendente lite may be raised by motion in a divorce action, and is addressed to the sound discretion of the district court.

9. The existence of an agreement between the parents as to the custody of a child does not prevent the district court in a divorce action making an order in regard to its custody pendente lite.

10. In a proceeding for contempt occurring outside the presence of the court, the affidavit is the complaint, and must set forth facts which constitute a contempt.

11. Allegation and proof of service of the order and demand are not necessary where it is alleged and proved that the alleged contemnor had personal knowledge of the order.

12. A court has no jurisdiction to punish a person for contempt for failing to comply with an order which the court had no jurisdiction to make.

13. When it clearly appears from the record that the basis of a judgment for contempt is a provision of an order which the court had no jurisdiction to make, the judgment will be reversed on writ of review.

Original application for a Writ of Review.

Action for divorce. Order for suit money and attorney fee. Restraining order. Order for custody of child. Judgment for contempt. Writ of review granted. Writ quashed as to restraining order and order for custody of child. Order for suit money and attorney fee, and judgment for contempt reversed.

Orders for suit money and judgment for contempt annulled. Case remanded. No costs awarded.

W. D Keeton and Ezra R. Whitla, for Plaintiff.

"The right of the court to allow attorney's fees is derived from the statute, and by the terms of the statute only can be put into operation when it is necessary to enable the wife to defend or prosecute the action." (Donaldson v Donaldson, 31 Idaho 180, 170 P. 94.)

"Agreements as to alimony or property rights, while there is no collusion to procure a divorce, are usually valid, and the court will sustain the same." (13 C. J., Par. 406, p. 464; Bulke v. Bulke, 173 Ala. 138, 55 So. 490; Grube v. Grube, 65 A.D. 239, 72 N.Y.S. 529; Galusha v Galusha, 116 N.Y. 635, 15 Am. St. 453, 22 N.E. 1114, 6 L. R. A. 487; Henderson v. Henderson, 37 Ore. 141, 82 Am. St. 741, 60 P. 597, 61 P. 136, 48 L. R. A. 766; Storey v. Storey, 125 Ill. 608, 8 Am. St. 417, 18 N.E. 329, 1 L. R. A. 320; Owen v. Yale, 75 Mich. 256, 42 N.W. 817; Walker v. Beal, 9 Wall. (U.S.) 743, 19 L.Ed. 814; Daniels v. Benedict, 97 F. 367, 38 C. C. A. 592; Amspoker v. Amspoker, 99 Neb. 122, 155 N.W. 602; Nieukirk v. Nieukirk, 84 Iowa 367, 51 N.W. 10; Martin v. Martin, 65 Iowa 255, 21 N.W. 595; Ross v. Ross, 47 Mich. 185, 10 N.W. 193; Methvin v. Methvin, 15 Ga. 97, 60 Am. Dec. 664; Turner v. Turner, 80 Cal. 141, 22 P. 72; Hill v. Hill, 74 N.H. 288, 124 Am. St. 966, 67 A. 406, 12 L. R. A., N. S., 848.)

"In order to punish a party for failure to comply with an order of court, it is necessary that such order should have been served on the alleged contemnor personally." (5 Ency. Pl. & Pr. 394; Tebo v. Baker, 77 N.Y. 33; Curtis v. Powers, 146 A.D. 246, 130 N.Y.S. 914; Grant v. Greene, 121 A.D. 756, 106 N.Y.S. 532.)

The affidavit must aver that the order has been served and demand of obedience made, otherwise no jurisdiction is acquired to punish the contempt. (State ex rel. Stillwell v. Stillwell, 80 Ore. 610, 157 P. 970.)

"The affidavit to punish a party as for contempt in violating a decree in a civil suit must allege that the decree was served on the party in default, or that he had personal knowledge thereof." (Trullinger v. Howe, 58 Ore. 73, 113 P. 4.)

A proper affidavit must be submitted before the court acquires jurisdiction. (Harkness v. Hyde, 31 Idaho 784, 176 P. 885; State v. Conn, 37 Ore. 596, 62 P. 289; Hawthorne v. State, 45 Neb. 871, 64 N.W. 359; 13 C. J., pp. 64, 65, par. 89.)

The fact that a person does not do something the court has ordered him to do is not contempt unless the order itself is proper. (Ex parte Shortridge, 5 Cal.App. 371, 90 P. 478; Ex parte Zeehandelaar, 71 Cal. 238, 12 P. 259.)

"To justify the imprisonment of a person until he has performed an act, it must appear that the performance of the act 'is yet in the power of the person to perform.'" (Re Hamberg, 37 Idaho 550, 217 P. 264.)

The order in this case regarding attorney's fees is not appealable, nor the order regarding the custody of the child. (Crosslin v. Crosslin, 35 Idaho 765, 208 P. 402.)

The writ of review is the proper remedy. (Johnson v. Ensign, 38 Idaho 615, 224 P. 73.)

The court may have jurisdiction of the parties and the subject matter but no jurisdiction to do the thing asked for, and an attempt to do so is beyond or in excess of jurisdiction. (Cronan v. District Court, 15 Idaho 184, 96 P. 768.)

Robt. H. Elder and Ed. S. Elder, for Defendants.

The order granting an injunction restraining plaintiff from disposing of the property belonging to the plaintiff and defendant, during the pendency of the action, or until further order of court, was an appealable order. (C. S., secs. 7152, 7170; Dougal v. Eby, 11 Idaho 789, 85 P. 102.)

The order awarding suit money and attorney's fees is an intermediate or interlocutory order which can be reviewed on appeal from the final judgment. (C. S., secs. 7152, 7170, 7171; Maple v. Williams, 15 Idaho 642, 98 P. 848; Utah Assn. of Credit Men v. Budge, 16 Idaho 751, 102 P. 691; Weiser Irr. Dist. v. Middle Valley etc. Co., 28 Idaho 548, 155 P. 484; Richards v. Richards, 24 Idaho 87, 132 P. 576.)

A writ of review will not issue where order may be reviewed on appeal. (C. S., sec. 7243; People v. Lindsay, 1 Idaho 394; Rogers v. Hays, 3 Idaho 597, 32 P. 259; Porter v. Steele, 7 Idaho 414, 63 P. 187; Chemung Mining Co. v. Hanley, 11 Idaho 302, 81 P. 619; Dahlstrom v. Portland Min. Co., 12 Idaho 87, 85 P. 916; Canadian Bank of Commerce v. Wood, 13 Idaho 794, 93 P. 257; Coeur d'Alene Min. Co. v. Woods, 15 Idaho 26, 96 P. 210; Utah Assn. of Credit Men v. Budge, 16 Idaho 751, 102 P. 691; Shumake v. Shumake, 17 Idaho 649; 107 P. 42; Bobbitt v. Blake, 25 Idaho 53, 136 P. 211; State v. Hosford, 27 Idaho 185, 147 P. 286; Neil v. Public Utilities Com., 32 Idaho 44, 178 P. 271; Johnson v. Ensign, 38 Idaho 615, 224 P. 73; Stoddard v. Superior Court, 108 Cal. 303, 41 P. 278.)

The allowance to the wife of counsel fees and suit money pending an action for divorce rests in the sound discretion of the trial court. (Wyatt v. Wyatt, 2 Idaho 236, 10 P. 228; Day v. Day, 12 Idaho 556, 10 Ann. Cas. 260, 86 P. 531; Day v. Day, 15 Idaho 107, 96 P. 431; Callahan v. Dunn, 30 Idaho 225, 164 P. 356; C. S., secs. 4642, 4653; Taylor v. Taylor, 33 Idaho 445, 196 P. 211; Enders v. Enders, 36 Idaho 481, 211 P. 549.)

The trial court had jurisdiction to award custody of the minor child. (C. S., sec. 4643; Donaldson v. Donaldson, 31 Idaho 180, 170 P. 94; Porter v. Steele, 7 Idaho 414, 63 P. 187.)

A contract or a stipulation awarding the custody of a minor child does not affect or abridge the right of the court to award the custody of the minor child. (Wilson v. Wilson, 45 Cal. 399; Black v. Black, 149 Cal. 224, 86 P. 505; Miller v. Higgins, 14 Cal.App. 156, 111 P. 403; Hunt v. Hunt, 4 G. Greene (Iowa), 216; Lowry v. Lowry, 108 Ga. 766, 33 S.E. 421.)

If the order made by the trial court was within its jurisdiction, however erroneous it may have been, it cannot be reviewed by writ of review. (Gunderson v. District Court, 14 Idaho 478, 94 P. 166; Weiser Nat. Bank v. Washington County, 30 Idaho 332, 164 P. 1014; Neil v. Public Utilities Com., 32 Idaho 44, 61, 178 P. 271; Grannis v. Superior Court, 143 Cal. 630, 77 P. 647; Stimpson Computing Scale Co. v. Superior Court, 12 Cal.App. 536, 107 P. 1013.)

Matters of discretion are not reviewable upon writs of certiorari. (Green v. Rogers, 18 Cal.App. 572, 123 P. 974; Gauld v. Board of Supervisors, 122 Cal. 18, 54 P. 272; People v. Latimer, 160 Cal. 716, 117 P. 1051; I. X. L. Lime Co. v. Superior Court, 143 Cal. 170, 76 P. 973; Hughes v. Moncur, 28 Cal.App. 462, 152 P. 968.)

The signing of an agreement settling property rights does not...

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