Cain v. Miller
| Decision Date | 30 December 1922 |
| Docket Number | 22468 |
| Citation | 191 N.W. 704,109 Neb. 441 |
| Parties | JESS CAIN, APPELLANT, v. IRA MILLER, SHERIFF, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: WILLARD E STEWART, FREDERICK E. SHEPHERD, WILLIAM M. MORNING and ELLIOTT J. CLEMENTS, JUDGES. Affirmed.
AFFIRMED.
W. W Towle and Francis V. Robinson, for appellant.
Claude S. Wilson and Albert S. Johnston, contra.
C. C Flansburg, amicus curiae.
Heard before MORRISSEY, C. J., LETTON, DAY, ROSE and ALDRICH, JJ., REDICK, District Judge.
Relator was confined in the county jail of Lancaster county under a commitment for contempt on account of his failure to comply with an order of the district court to pay temporary alimony, suit money and attorney's fees for the benefit of his wife, who had begun an action for divorce against him. He applied to the district court for a writ of habeas corpus to discharge him from custody. The writ was denied, and from the order denying the writ he appeals.
The sole question presented is: Did the district court possess jurisdiction to punish, by contempt proceedings, the refusal of relator to obey the order? If the case at bar falls within the principles of Segear v. Segear, 23 Neb. 306, 36 N.W. 536, and Leeder v. State, 55 Neb. 133, 75 N.W. 541, and if we adhere to the views expressed in those cases, then the relator is entitled to his discharge.
In Segear v. Segear, 23 Neb. 306, 36 N.W. 536, an order to pay temporary alimony had been made. Defendant failed to comply with this order, and was cited to appear and show cause why he should not be dealt with for contempt. He appeared and alleged he had no property or other means of complying with the order of the court. After the granting of a divorce to the wife, it appearing that defendant had neglected to pay the allowance of alimony, amounting to $ 225, the court ordered that he be committed to jail until he pay, or satisfactorily secure the payment of, that sum and costs, on which a capias ad satisfaciendum issued and he was committed to jail. On error proceedings to this court, he was discharged. In the opinion by Cobb, J., section 1 of the amendatory statute of 1883 (Laws 1883, ch. 40) was quoted. It provides: "All judgments and orders for payment of alimony or of maintenance in actions of divorce or maintenance shall be liens upon property in like manner as in other actions, and may in the same manner be enforced and collected by execution and proceedings in aid thereof, or other action or process, as other judgments." It was said: "The provisions of this section establish the character of an order for the payment of alimony with that of a judgment at law, and limits the enforcement and collection to the same means." It was also said that the commitment for contempt was not a lawful remedy, nor was the nonpayment of the judgment "wilful disobedience" to the order of the court. It may be noted that there was no appearance in this court for defendant in error, so that the court was not aided by the argument of counsel, or the production of authorities presenting the contrary view.
In Leeder v. State, 55 Neb. 133, 75 N.W. 541, the respondent had been ordered, in 1888, to pay the sum of $ 500 as permanent alimony in a divorce action. An execution at that time issued upon the judgment and returned, no property found. In 1898, no other execution having been issued in the meantime, and no motion or pleading being filed, an order was issued that defendant show cause why he had not complied with the order of the court for the payment of the $ 500. He appeared and promised to pay $ 100 in three days. He failed to make this payment, and was attached for contempt in not complying with the order of the court. He answered that he was without means and pleaded his exemptions. The court adjudged him guilty of contempt, and ordered him to pay a fine of $ 200 and costs, and stand committed to jail until the fine and costs were paid. Upon error proceedings, this court, by Norval, J., said: It was further stated: "The defendant could no more be adjudged guilty of contempt, and fined and imprisoned for failing to pay the $ 100, than he could be punished as for contempt for a refusal to pay his grocery bill, or to pay an ordinary judgment." Segear v. Segear, 23 Neb. 306, 36 N.W. 536, and Nygren v. Nygren, 42 Neb. 408, 60 N.W. 885, are cited to support these views.
Nygren v. Nygren, 42 Neb. 408, 60 N.W. 885, merely decides that under the amended statute a decree for alimony became a lien upon the real estate of the husband. The question presented now was not involved.
In Fussell v. State, 102 Neb. 117, 166 N.W. 197, which was a prosecution under chapter 186, Laws 1915 () it was held that the act was evidently passed by the legislature for the express purpose of giving the district court power to enforce orders and decrees in divorce cases, and that the court would ordinarily have such power by a contempt proceeding; but, this court having held in the Segear and Leeder cases that a decree for alimony is not so enforceable, the legislature passed the act now under consideration. It was also held that this statute did not provide for imprisonment for debt.
From this review it is evident that the view that orders for the payment of alimony are debts like ordinary judgments rests primarily upon a decision in which no appearance was made by counsel to maintain the other view.
Are these decisions sound? After it had been held in Swansen v. Swansen, 12 Neb. 210, 10 N.W. 713, that, as the statute then stood, a decree for alimony did not constitute a lien on real estate, the legislature passed the amendatory act of 1883. The first section of this act, as we have seen, provides that judgments and orders in divorce cases, shall be liens upon property as in other actions, and may in the same manner be enforced and collected by execution, or other process as in other judgments. Section 2, which is not mentioned in the Segear or Leeder opinions, but which is relied upon as justifying the imprisonment of the relator, so far as material here, is as follows: "The remedy given by this act shall be held to be cumulative and in no respect to take away or abridge any subsisting remedy or power of the court for the enforcement of such judgments and orders." Laws, 1883, ch. 40, sec. 2. What remedy or power of the court for the enforcement of judgments and orders then subsisted? In a consideration of the power of divorce courts in this country, Mr. Bishop says: 1 Bishop, Marriage, Divorce and Separation, sec. 123. And, also, in section 126: "If we should deny the doctrine of law in abeyance, and even hold that the marriage and divorce law of the English ecclesiastical courts did not become common law in the American colonies on their settlement from England, still, when the statute of a state authorizes divorce for a cause named, it carries with it by interpretation the further provision that it shall be enforced after the English rules and methods, so far as adapted to our circumstances and the common practice of the particular court, and not in conflict with any statutory terms." He illustrates this by the doctrines of connivance, condonation and recrimination, which are not to be found in the statutes, and yet are applicable as defenses in a divorce suit. Petrie v. People, 40 Ill. 334; Barber v. Barber, 62 U.S. 582, 16 L.Ed. 226. This court has taken the same view. Cizek v. Cizek, 69 Neb. 800, 99 N.W. 28; Cizek v. Cizek, 76 Neb. 797, 107 N.W. 1012; Wharton v. Jackson, 107 Neb. 288, 185 N.W. 428.
A few courts refuse to allow the remedy by contempt proceedings for wilful refusal to pay alimony. The reasons given are that, since the legislature has provided a remedy by execution, the ancient power of courts of chancery to enforce their orders by attachment of the person has been abolished; or, that such an order for the payment of alimony is a mere debt, and that imprisonment for debt is abolished by the Constitution. The courts of Missouri assign both reasons. The first reason is assigned in McMakin v. McMakin, 68 Mo.App. 57, and In re Kinsolving, 135 Mo.App. 631, 116 S.W. 1068. Coughlin v. Ehlert, 39 Mo. 285, giving the second reason, and holding that therefore one refusing to obey an order for the payment of alimony may not be imprisoned, is based upon Roberts v. Stoner, 18 Mo. 481, which was not a divorce and alimony case. In Aspinwall v. Aspinwall, 53 N.J.Eq. 684, 33 A. 470, construing a statute of the state, the first reason is assigned; also in Gane v. Gane, 45 N.Y.S. 355. The second reason is given in Marsh v. Marsh, 162 Ind. 210, 70 N.E. 154.
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