Allison v. State ex rel. Allison

• Decision Date: 05 February 1963
• Docket Number: No. 30274,30274
• Citation: 187 N.E.2d 565,243 Ind. 489
• Parties: William T. ALLISON, Appellant, v. STATE of Indiana ex rel. Lillian ALLISON and State of Indiana, Appellees.
• Court: Indiana Supreme Court

Page 565

187 N.E.2d 565

243 Ind. 489

William T. ALLISON, Appellant, v. STATE of Indiana ex rel. Lillian ALLISON and State of Indiana, Appellees.

No. 30274.

Supreme Court of Indiana.

Feb. 5, 1963.

C. K. McCormack, Joseph T. Mazelin, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., William D. Ruckelshaus, Asst. Atty. Gen., for appellee, State of Indiana.

Lynnville G. Miles, Indianapolis, for appellee, Lillian Allison.

ARTERBURN, Judge.

This is an appeal from an action for indirect criminal contempt. An affidavit was filed and sworn to by Lillian Allison, entitled and reading as follows:

'STATE OF INDIANA

COUNTY OF MARION SS:

IN THE SUPERIOR COURT OF MARION COUNTY CAUSE NO. S62-520 ROOM NO. 5

STATE OF INDIANA ON THE RELATION OF LILLIAN ALLISON,

-vs-

WILLIAM T. ALLISON}

PETITION AND AFFIDAVIT FOR CRIMINAL CONTEMPT

'Comes now the State of Indiana on the relation of Lillian Allison and alleges:

'1. That heretofore, on or about 7 of December 1961 the petitioner, Lillian Allison, filed her Verified Petition for Divorce and Restraining Order which petition is as follows: (H.I.)

'And the said petition for Divorce was filed in the Superior Court of Marion County, Room No. 3 and was docketed under Cause No. S61-8153;

'2. And the said Superior Court did on or about 7 of December 1961 issue its Order restraining and enjoining the defendant, William T. Allison, from '* * * bothering this plaintiff in any manner whatsoever at any place where she may be * * *' and the said defendant was further enjoined as follows:

'* * * William T. Allison be and is hereby restrained and enjoined from coming on or about her place of residence, same being 5123 North Illinois Street, Indianapolis, Indiana * * *'

'3. That on or about the 18th day of January, 1962 and while such order was still in full force and effect, the defendant, William T. Allison, did enter upon the premises of the plaintiff, the same being 5123 North Illinois Street, and did then and there remove and cause to be removed the property of Lillian Alliosn and enter upon the above described premises and did dump the plaintiff's clothing and effects out of furniture and did remove her furniture from her home.

'4. That the defendant did obtain through a Justice of Peace Court an Order in replevin without notice to this plaintiff and did bring many persons upon the plaintiff's premises and that they did enter upon said premises, made threats to the plaintiff, cut the telephone wires so that she could not call out and did then interfere with her control and custody of the parties minor children all in violation of the Restraining Order heretofore issued.

'5. That the acts of the defendant were deliberately intended to defy the Order of this Court heretofore issued.

'WHEREFORE, affiant asks that a rule issue against the said defendant requiring him to appear before this Court at a time to be fixed by this Court to show cause why he should not be punished for such contempt.

'Phillip L. Bayt,

'Prosecuting Attorney

'by (signed)

'Francis E. Thomason

'Deputy Prosecutor

(Signed)

Lillian Allison

Affiant.'

This affidavit was subscribed and sworn to before Lynneville G. Miles, a Notary Public, under the date of January 19, 1962.

Upon this petition, a rule was issued ordering the defendant to show cause 'why he should not be attached and punished for contempt.' The trial judge made an entry disqualifying himself under Burns' § 3-911 and named three attorneys as a special panel for the selection of a special judge. The State, through its prosecuting attorney, and the defendant, through his counsel, each struck a name, leaving Judson F. Haggerty as Special Judge to try the cause. On February 13, 1962, the special judge entered a default judgment against the appellant, finding him guilty of criminal contempt, fining him $25.00 and sentencing him to sixty days at the Indiana State Farm. However, upon motion and by agreement of the parties, the default judgment was set aside and the matter was set for hearing on March 8, 1962. After an application for change of judge by the appellant was overruled, he filed a motion to quash and a motion to reconsider the ruling on change of judge, and then filed a verified answer in purgation. The court, finding the answer insufficient, found the appellant in contempt of court and fined him $25.00 and sixty days at the Indiana State Farm.

We first consider the items alleged in the motion to quash, that the criminal contempt action was not brought in the name of the State of Indiana and that the rule to show cause does not cite the facts which are alleged to constitute the contempt with sufficient certainty. The latter contention may be quickly disposed of by referring to the record which shows that the affidavit filed was 'made a part' of the rule to show cause. The affidavit filed in the proceeding was also attached to and made a part of the papers served upon the appellant, and he therefore was sufficiently informed of the charge made against him. 2 Ewbanks, Indiana Criminal Law §§ 638-39, pp. 416-17 (Symmes Ed.).

When a proceeding for indirect criminal contempt is institute, an affidavit must be filed, verified by the oath of the informant and upon his personal responsibility. (Burns' § 3-908) Such was the case here. It must also be filed as an independent action, as distinct from one filed as civil contempt in another proceeding. In this case the proceeding is an independent action, separate from that of the original divorce case out of which the controversy grew. The action must also be prosecuted by the State. The acts constituting the criminal contempt 'must be characterized by a deliberate intention to defy the authority of the court.' Denny v. State ex inf. Brady (1932), 203 Ind. 682, 707, 182 N.E. 313, 321; Burns' §§ 3-903 and 4-1414.

Appellant's contention that the proper caption should have been 'State of Indiana' instead of 'State of Indiana ex rel Allison' is grounded on the argument that the real party in interest is the State of Indiana and not an individual acting in a private capacity, as in civil contempt proceedings providing a private remedy. The party harmed in the case of criminal contempt is the State and not a private individual (as in the case of a civil contempt). That the present case is a criminal contempt proceeding is conceded by the appellant both in his brief and in his memorandum to his motion to quash. The case has thus been characterized throught the trial court as a criminal contempt proceeding. In this case the prosecuting attorney signed the affidavit and, so far as the record shows, has prosecuted the action on behalf of the State of Indiana.

In Ervin et al. v. State ex rel. Walley (1879), 150 Ind. 332, 48 N.E. 249, the statute provided that a wife could recover gambling losses of the husband in the name of the State. 2 Ewbanks, Indiana Criminal Law § 638, p. 416 (Symmes Ed.).

The action was brought by the State 'ex rel. Walley'. The court said:

'But, the naming of the relator not having the effect of making her a party plaintiff, the state is the sole party plaintiff, and the action was prosecuted in its name as plaintiff; hence that part of the complaint naming Nellie A. Walley as relator is mere surplusage, and does not vitiate the complaint.'

We find nothing in Denny v. State ex inf. Brady (1932), 203 Ind. 682, 182 N.E. 313, which would conflict with our holding such matter to be surplusage. Although the better practice would be to entitle a criminal contempt proceeding as simply brought by the State of Indiana alone, the fact that an improper party was also joined as a petitioner or plaintiff does not nullify the existence of a proper party.

The motion to quash further urges that the affidavit does not allege facts constituting a public offense. Although 'public offense' may not be sufficiently specific in an indirect contempt proceeding to identify the acts constituting such contempt, we pass such question by to reach the merits of the point. It is specifically urged that the appellant was charged with violating the original order, without any reference to a subsequently modified order of the court. The original order provided that the defendant was restrained from 'bothering this plaintiff in any manner whatsoever in any place where she may be. * * *' and 'William T. Allison be and he is hereby restrained and enjoined from coming on or about her place of residence, being 5123 North Illinois Street, Indianapolis, Indiana. * * *' The appellant contends in his brief that this order was modified (as stated in the answer of purgation) to the extent that the plaintiff (the wife) 'is to make available to the defendant all office equipment, books, records and all notes and contracts.' There is no record or transcript supporting such a fact so far as to be applicable in a motion to quash the charge, other than the allegation in the answer just referred to. The charge as filed shows that the appellant deliberately defied the court's order no to molest or bother his wife pending the divorce action, and that he 'did enter upon the premises of the plaintiff * * * and did then remove and cause to be removed property of Lillian Allison * * * and did dump the plaintiff's clothing and effects out of furniture and did remove her furniture from her home.' The allegations further state 'that the defendant did obtain through a Justice of Peace Court an order in replevin without notice to this plaintiff and did bring many persons on plaintiff's premises and that they did enter upon said permises, made threats to plaintiff, cut the telephone wires so that she could not call out and did then interfere with her control and custody of the parties' minor children.'

These appear to us to be sufficient allegations, as tested by the motion to quash, to support a violation of the court's order.

We find no error in the overruling of the motion to quash.

The defendant filed an answer in purgation which he...