Edmonson v. Ramsey

• Decision Date: 01 March 1920
• Docket Number: 21002
• Citation: 122 Miss. 450,84 So. 455
• Court: Mississippi Supreme Court
• Parties: EDMONSON, SHERIFF, v. RAMSEY

84 So. 455

122 Miss. 450

EDMONSON, SHERIFF, v. RAMSEY

No. 21002

Supreme Court of Mississippi

March 1, 1920

APPEAL from Circuit Court of Forrest County, HON. R. S. HALL, Judge.

Petition for habeas corpus by N. K. Ramsey against A. E. Harbison sheriff of Forrest County. Petitioner discharged from custody and the Sheriff granted an appeal. Motion to dismiss the appeal denied, and after expiration of his term the appeal was prosecuted by his successor, W. M. Edmonson, and judgment reversed and petition dismissed.

Judgment reversed, and petition dismissed.

Currie & Currie, for appellants.

The only question which can or does arise on this appeal is: Did the chancery court have the authority in law to require the appellee herein, N. K. Ramsey, who was the defendant in said suit, to execute a bond for the payment of the decree rendered against him for the support and maintenance of his wife and child, and whether upon his failure to execute, or refusal to give bond, the chancery court had the right power, authority and jurisdiction under the law, to commit him to the custody of the appellant, as sheriff of Forrest county, until such time as that he should give the bond or until the further order of the court?

It is alleged in the bill of complaint and was established by the proof in the trial of the case that the appellee had said and threatened that he would leave the state of Mississippi and go beyond the reach of the courts and the laws in this state before he would pay alimony for the support of his wife and child, if the same should be adjusted against him. It was alleged in the bill of complaint and established by the proof in the trial of the case, that there was danger of his so doing and that the appellee would, unless restrained from so doing by order of the court leave the State of Mississippi and go beyond the jurisdiction of the laws and courts of the state of Mississippi for the purpose of defeating and would thereby defeat the payment and collection of the decree rendered against him for the support of his wife and child.

All these facts were found and adjudicated by the chancery court and upon that state of case the chancery court found "need be" to require the giving of bond by the appellee herein to secure the payment of said decree according to its terms and conditions and ordered that the appellee be required to execute bond with sufficient sureties in the penalty of one thousand dollars conditioned for the payment of said decree, and in default thereof, he be detained in the custody of the sheriff and in the county jail of Forrest county until such time as that he did give the bond or until the further order of the court. Such is the sum and substance of that case and the decree therein rendered by the chancery court of Forrest county.

Now, by reference to section 1673 of the Code of Mississippi, 1906 which reads as follows: "When a divorce shall be rendered from the bonds of matrimony the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just make all orders touching the care, custody, and maintenance of the children of the marrage and also touching the maintenance and alimony of the wife, or any allowance to be made to her, and may, if need be, require assurance for the payment of the sum so allowed; and the court may afterwards, on petition, change the decree and make from time to time such new decrees as the case may require: "It will be seen the above section pointedly and specifically authorized the chancery court to render the decree which it did render in the case. It is authority, statutory and absolute, for such a decree and such procedure as was had in the case.

The statute quoted was enacted to cover exactly and precisely just such a case as that in which the decree annulled by the judge of the circuit court was rendered. We do not pause to discuss the many inhuman, brutal, and abusive acts charged and complained of against the appellee in the case in the chancery court further than to say that every allegation in that bill was thoroughly established by the proof introduced in the trial of the case. The mother was deserted and helpless and the infant which she bore the appellee exceedingly delicate and practically blind. A case of vagrancy was established against the appellee.

If it is to be held that a chancery court in such a case has no authority under section 1673 to require such a bond and to make such other orders and to issue such other writs as may be necessary to compel the giving of the bond, then let us spit on and sponge out the section as meaningless and as affording no remedy.

We submit that the decree under which the appellee was being held by the appellant in the county jail is a valid and binding decree and that the order of the Honorable R. S. Hall, Judge of the Twelfth Circuit Court Judicial District, in annulling the same and ordering the appellee released without giving the bond required, was error, contrary to law and that the order releasing the appellant ought to be annulled and the appellee ordered back into the custody of the appellant until such time as that he shall have given the bond required by the chancery court or until the further order of the chancery court.

Robt. L. Bullard, for appellee.

The chancery court is without power ever, under any circumstances, to commit any one to jail for any cause except for contempt of its authority and dignity. It is without power to inforce any of its decrees by means of imprisonment.

If we assume that the chancellor was warranted in ordering the appellant to give sureties for the performance of the decree in question, which we deny, still he had no power to commit him to the county jail to coerce either the payment of the alimony, or the giving of security for the payment of future instalments that might or might not fall due hereafter.

The authority to decree alimony and to order the giving of security, rests upon the same authority and is governed by the same law. Section 1673, Code 1906, is the statute in question and in it we find: "Where a divorce shall be granted from the bonds of matrimony, the court may . . . make all orders . . . touching the maintenance and alimony of the wife, or any allowance to be made to her, and may, if need be, require sureties for the payment of the sum so allowed, etc.,

Now, for the payment of what sum so allowed may sureties be required? The court may do one of two things, not both. He may make such orders as he may deem necessary "touching the maintenance and alimony of the wife," or he may make an "allowance to her." The two things are distinct and are so recognized by the authorities on the subject. In the case of Guess v. Smith, 56 So. 166, this court said: "When alimony is commuted to a lump sum, to be paid presently, as in this case, in fixing the amount, the court takes into consideration the possible remarriage of the wife to a husband able to support her, and any and all contingencies which might arise. It is a settlement between the husband and the wife as to the interests of the latter in his property, and as to the extent of the husband's duty to contribute to her support and maintenance. " Such, therefore, is the allowance the court is authorized to make to her, and for the sum so allowed may require sureties.

Surely it was never contemplated by this statute that sureties could be required for the payment of something that might never accrue. The decree is to pay seventy dollars per month. What "sum" then could the sureties undertake to pay? Would the "sum" to be secured be seventy dollars or seven hundred times seventy? It might be either or none. No law was ever oppressive enough to compel a man to give security for the payment of something that it was impossible for him to pay. Presumably it would be his duty to pay each month as long as each of them should live. That might not be a month and it might be more than half a century. No law could authorize a court to compel the giving of security for the payment of any demand involved in the haze of such uncertainty as that.

But let it be conceded for the sake of argument that the court did have authority to require sureties for the continued payment of alimony at stated periods indefinitely. Even then to assume the power to order that, "said defendant be and he is hereby committed to the county jail of Forrest county, there to be kept until the entering, execution of and filing and approval of such bond," is the assertion of a tyranny worthy the dark ages. It is the assertion of a power that has strewn the shores of modern times with some of its most noble ruins, as for example the Chelsta and Stein. Successful revolts of human liberty against it have given the freest of people their most cherished anniversaries, as the 14th. of July marks for the people of France the fall of the Bastile. That we may never have to strive against it again, two constitutional guarantees have been committed to the keeping of this court, viz.: Section 23, Constitution 1890. "Cruel nor unusual punishments shall not be inflicted," and Section 30. "There shall be no imprisonment for debt."

Any imprisonment that is indefinite, or at the will of any person, is always held, I think, to be within the condemnation of section 28. Here the imprisonment is both indefinite and at the will of the chancellor who imposed it. There is nothing but his own death that can be pointed to as surely terminating his stay in jail, nothing but the writ of habeas corpus.

It is no answer to this to say that the chancellor might, at some time in the future, relent and revoke the order, or that his wife might die before he does. It is no answer to say that he might secure...