Brooks v. Edgington

• Decision Date: 07 February 1925
• Parties: HARVEY M. BROOKS, Plaintiff, v. GEORGE W. EDGINGTON, Judge of the District Court of the Ninth Judicial District, Defendant
• Court: Idaho Supreme Court

233 P. 514

40 Idaho 432

HARVEY M. BROOKS, Plaintiff, v. GEORGE W. EDGINGTON, Judge of the District Court of the Ninth Judicial District, Defendant

Supreme Court of Idaho

February 7, 1925

MANDAMUS - MOTION TO STRIKE-IMPRISONMENT FOR CONTEMPT-DISCHARGE.

1. A writ of mandamus will not issue unless the party seeking it has a clear legal right to have the act done for which he seeks the aid of the writ, and it is the clear legal duty of the officer to act.

2. Sections 7308 to 7319, C. S., entitling persons confined in jail under executions issued in civil action to apply for a hearing for the purpose of obtaining a discharge, are available to a person confined in jail for noncompliance with an order of court for the payment of alimony.

3. On petition for a writ of mandate to compel a district judge to hear a motion to purge petitioner of contempt, an allegation that the prisoner is ill and confinement in jail is detrimental to his health is not material to the petition for the writ and will be stricken.

PETITION for Writ of Mandamus. Demurrer sustained alternative writ quashed, and writ denied.

Demurrer sustained and the writ quashed. Costs awarded to defendant.

James S. Byers, for Plaintiff.

Mandamus will issue to compel the district court to proceed with a trial of which it has properly assumed jurisdiction. (Fox v. Flynn, 27 Idaho 580, 150 P. 44; State v. District Court, 126 Minn. 501, Ann. Cas. 1915D, 198, 148 N.W 463; State ex rel. Mary Frances Realty Co. v. Homer, 150 Mo.App. 325, 130 S.W. 510; 26 Cyc. 221; Hill v. Morgan, 9 Idaho 718, 76 P. 323.)

The petitioner is entitled to a discharge under C. S., secs. 7308-7319. (Spencer v. Lawler, Judge, 79 Cal. 215, 21 P. 742; In re Wilson, 75 Cal. 580, 17 P. 698; Ex parte Levin, 191 Cal. 207, 215 P. 908; In re Spencer, 83 Cal. 460, 17 Am. St. 266, 23 P. 395; United Railroads v. Superior Court, 172 Cal. 80, 15 P. 463.)

A judgment of contempt does not divest the court of jurisdiction. (Ex parte Hanson, 81 Kan. 608, 106 P. 276; Tindall v. Nisbet, 114 Ga. 224, 39 S.E. 849; Childs v. Wiseman, 119 N.C. 497, 26 S.E. 126; 13 C. J. 95.)

The motion was actually heard and urged on January 12th. C. S., sec. 7315, says "may apply" every thirty days. That was the date we "applied" to the court for a discharge, which was more than thirty days from December 10, 1924.

Holden & Mote, for Defendant.

The order and judgment of the court made and entered on December 10, 1924, is final and conclusive. (C. S., sec. 7396.) The nature of a contempt of this kind is quasi criminal. (Levan v. Richards, 4 Idaho 667, 43 P. 574; In re Hamberg, 37 Idaho 550, 217 P. 264; Ex parte Von Gerzabek, 63 Cal.App. 657, 219 P. 479; People v. Curry, 45 Cal.App. Dec. 585, 231 P. 358.)

C. S., secs. 3708-3719, refer entirely to judgments and execution in civil matters. This present case is a special proceeding and not a judgment or execution on civil process. (Ex parte Levin, 191 Cal. 207, 215 P. 908.)

In view of the fact that plaintiff was adjudged in contempt on December 10, 1924, and filed his motion for discharge on January 7, 1925, just twenty-eight days after the rendition of the order of commitment, the motion was prematurely made and the court, in any view of the facts, was without jurisdiction to hear the same. (C. S., sec. 7315; Spencer v. Lawler, 79 Cal. 215, 21 P. 742; In re Wilson, 75 Cal. 580, 17 P. 698.)

TAYLOR, J. William A. Lee, C. J., Wm. E. Lee, Budge and Givens, JJ., concur.

OPINION

TAYLOR, J.

A petition was filed herein for an alternative writ of mandate to compel the defendant, George W. Edgington, Judge of the district court of the ninth judicial district in and for the county of Bonneville, to hear and determine the motion of petitioner for his discharge from confinement in jail on a commitment made upon a judgment for contempt. An alternative writ of mandate was issued. The defendant demurred to the petition, moved to quash the writ and filed an answer in return thereto.

The petitioner, plaintiff in a divorce action in the district court of Bonneville county, was by judgment therein, ordered to pay monthly alimony. Upon his failure to comply with the judgment for a considerable period of time he was cited for, and after a hearing, adjudged guilty of contempt, and upon December 10, 1924, was ordered to pay forthwith the sum of $ 900 and to be confined in the county jail until such time as "payment of said sum shall be made," and since that date has been in jail under said order and commitment.

The petition for an alternative writ of mandate herein recites "That on the 7th day of January, 1925, your petitioner moved the said District Court to be purged of the said contempt, so pronounced, upon the ground and for the reason that the petitioner herein, was as of the date of the said commitment and of the said motion, wholly unable to pay the sum of $ 900 set out in said judgment and unable to comply with the terms thereof," and further, "that on the 12th day of January, 1925, your petitioner's motion to purge himself of the contempt came on regularly to be heard in said District Court. Honorable George W. Edgington sitting as Judge thereof."

The petition further recites that the motion was in writing, that petitioner's attorney demanded of said judge that he hear petitioner's motion; that said judge refused to heed or permit petitioner to urge his said motion "and then and there refused, and still refuses to permit your petitioner to purge himself of the said judgment of contempt," further reciting that the respondent entered a judgment so refusing which is set out in full in the petition.

The petition further recites "that at the time of making said motion . . . . and since the time thereof this petitioner has requested and demanded that he be permitted to purge himself of the contempt judgment made and entered in said court," but the defendant refused, and does now refuse, to permit or hear petitioner's motion to purge himself of the said contempt.

Defendant filed a motion to strike from the petition an allegation which recites "That your petitioner is now confined in the said jail of Bonneville County, Idaho; that duly qualified and acting physicians have examined this petitioner and have certified to the said District Court that petitioner is ill and that the confinement in said jail is detrimental to the health of petitioner." The allegation as to the condition of petitioner's health is not material for our consideration on the petition for writ of mandate and therefore should be stricken. Defendant demurred to the petition "for the reason that said petition for such writ does not state facts sufficient to warrant the issuance of an alternative writ of mandamus, and for the further reason that no proper showing has been made for such writ."

It appears from the petition that the defendant refused to entertain the motion of the petitioner wholly upon the ground that the judgment of contempt was final and conclusive. The memorandum decision made by the court recites that "the court has come to the conclusion that it has...