Ex Parte Badger

• Decision Date: 13 December 1920
• Docket Number: No. 22532.,22532.
• Citation: 226 S.W. 936,286 Mo. 139
• Parties: Ex parte BADGER.
• Court: Missouri Supreme Court

226 S.W. 936

286 Mo. 139

Ex parte BADGER.

No. 22532.

Supreme Court of Missouri, in Banc.

December 13, 1920.

Rehearing Denied December 31, 1920.

Herbert E. Badger was adjudged guilty of contempt, and he petitions for habeas corpus. Writ quashed, and petitioner remanded to custody.

W. O. Jackson, of Butler, and John H. Lucas, of Kansas City, for petitioner.

WALKER, C. J.

Petitioner was adjudged guilty of contempt by the circuit court of Bates county for refusing to obey an order of that court and was sentenced to imprisonment in the county jail. He seeks release therefrom on the ground that the court was without jurisdiction.

In March, 1919, the wife of the petitioner filed a bill in equity against him in the circuit court of Bates county for maintenance and the custody of their three minor children. A decree was rendered in her favor. Upon an appeal to the Kansas City Court of Appeals the judgment of the trial court was affirmed, and the custody of the children awarded to the mother. 224 S. W. 41. Petitioner thereupon applied to the Supreme Court for a writ of certiorari to be directed to the Court of Appeals on the ground that its opinion was in conflict with certain decisions of the Supreme Court. The application for the writ was denied. Petitioner then applied to the Supreme Court for a writ of prohibition to prevent the trial court from taking further cognizance of the suit in which it had rendered judgment against him, and especially from proceeding against him for contempt for his failure to surrender the custody of the children to their mother. The application for this writ was denied.

Upon the failure and refusal of the petitioner to comply with the judgment of the trial court, he was adjudged guilty of contempt and ordered into the custody of the sheriff of Bates county to be imprisoned in the county jail until the further order of the court or until otherwise discharged by due process of law. Petitioner thereupon applied to the Supreme Court for a writ of habeas corpus, alleging as sole ground therefor, as in the applications for certiorari and prohibition, a lack of jurisdiction of the trial court in equity to entertain a proceeding to determine and award the custody, of minor children.

It is not necessary to set forth in detail the facts adduced in evidence upon which the trial court based its finding in rendering judgment herein and in thereafter ordering the petitioner's imprisonment for his failure to comply therewith. These facts, if not expressly conceded, are not attempted to be denied and are made a part of the sheriff's return. We also find them correctly set forth with all necessary fullness in the learned opinion of the court of Appeals by Ellison, J. Their recital here would consequently only serve to emphasize the moral turpitude of the petitioner and add, if possible, to the radiant luster of his wife's life as manifested by her fidelity to duty. Only so far, therefore, as it may be deemed necessary to clearly define the character and render evident the attitude of the petitioner will the facts as found by the trial court be stated.

The petitioner, his wife, and three small children, lived in Colorado. The youngest child became seriously ill, and so continued for many months. The mother attempted during all of this time to give the child such attention as its condition required and at the same time to care for the other children and perform all the duties of a housewife. As a result her health broke down and she suffered from nervous prostration. After months of treatment she was taken by petitioner to her father's home; the children then being cared for by his mother. During the latter part of the wife's illness a nurse was employed to care for the wife. The petitioner became infatuated with this woman, afterwards shown to be without character. Upon the wife's recovery and her repeated importunities that the petitioner provide a home for her and the children, he refused to do so, ineffectually sought to obtain a divorce or to induce the wife to obtain one, and continued his clandestine relations with the woman, who, in the meantime, had gone to Rich Hill, Mo. Upon the refusal of the petitioner to establish a home for his wife and children and his cruelly informing the wife that he did not intend to live with her, she brought a suit in Colorado for maintenance and the custody of the children. Upon being served with summons in that proceeding he took the children, then at his mother's, and came with them to Rich Hill, where he proceeded to establish a home and to install therein as mistress the woman with whom he had become infatuated, placing his children in her charge. This woman's immorality was a matter of record of which the petitioner had knowledge. This condition of affairs existed at the time the wife brought the action in Bates county, and continued after the custody of the children had been awarded to her, when the petitioner spirited them away in violation of the court's decree, and hence the adjudication in contempt from which petitioner seeks re" lease.

The right of the petitioner to the writ herein is dependent upon the jurisdiction in equity of the trial court. This jurisdiction is the question primarily to be determined. Other inquiries determinative of that juris" diction may properly be considered.

[i] I. Wife's Right to Sue Husband. — At the common law the identity of the husband and wife as one person precluded either from suing the other; but in equity, where the wife's claims were adverse to her husband's, she might sue him by next friend and he might sue her. Early in the history of our jurisprudence courts of equity recognized the separate existence of the wife and secured to her her separate estate and equitable rights. Tennison v. Tennison, 46 Mo. 77. Her rights as thus limited were generally recognized here and in other states of the Union before the enactment of the married women's act. The dominating changes effected by this character of legislation are too familiar to require extended recital. While the statutes of the several states on this subject are similar in the main, they are different in minor particulars not necessary to be set forth here. Generally this purpose, as evidenced by their terms, is to render the husband and wife independent of each other as to their property and litigable rights, thus rendering the wife capable of contracting in law as well as in equity as if she were a feme sole. The Missouri statute (now section 8304, R. S. 1909), omitting the proviso, not pertinent, is as follows:

"A married woman shall be deemed a feme sole so far as to enable her to carry on and transact business on her own account, to contract and be contracted with, to sue and be sued, and to enforce, and have enforced against her property such judgments as may be rendered for or against her, and may sue and be sued at law or in equity, with or without her husband being joined as a party."

An illuminating opinion by Gantt, J., in Rice, Stilt & Co. v. Sally, 176 Mo. 107, 75 S. W. 398, after construing this statute, concludes that —

"A proper construction [of same] leads to the complete emancipation of the wife from her matrimonial bonds so far as her property rights are concerned in law, as well as in equity, and that she may contract with her husband and sue and be sued by him at law."

This conclusion was reached in determining that the wife might maintain an action at law against her husband.

In Grimes v. Reynolds, 184 Mo. 679, 68 S. W. 588, 83 S. W. 1132; Id., 184 Mo. 694, 83 S. W. 1133, the right of a wife to litigate concerning her separate estate, to become a creditor or a debtor of her husband, and the authority of either to enforce their rights in equity against the other, was definitely declared. Our latest ruling on this subject, which follows the trend of former decisions, is found in Regal Realty, etc., Co. v. Gallagher, 188 S. W. 151, in which it is broadly stated that the statute in clothing the wife with powers of a feme sole and authorizing her to transact business and contract and be contracted with applies as well to her relations with her husband as with others (citing numerous cases).

From all of which it follows that a wife may as a feme sole sue her husband as she may others in law as well as in equity, except that she cannot maintain an action for a personal tort against him. Rogers v. Rogers, 265 Mo. 200, 177 S. W. 382.

II. Jurisdiction as to Personal Rights. — Before discussing the immediate question of jurisdiction here demanding determination, we may not inappropriately consider the more general inquiry as to the power of a court of equity to exercise jurisdiction in the protection of personal rights or the extent to which the maxim, "Æquitas agit in personam," is applicable.

It is true that the findings of the trial court not only considered and disposed of the personal status but the property rights as well of the children. This might be regarded as foreclosing the necessity of a consideration of the general inquiry; but, that no phase of the court's equity powers may not be subjected to review, we consider it. If not expressly stated, the intimation appears in numerous cases that a complainant's person is beyond the scope of the powers of a court of equity. However, this conclusion must not be taken literally. "If so," as was forcefully said by a modern commentator (Burdett A. Rich), "it would make the system of equity suitable only to a semi-savage society which has much respect for property but little for human life. Our equity jurisprudence does not deserve so severe a reproach." While it has done much for the protection of personal rights, it has been reluctant to admit ft. The existence of this power, rendered evident by its frequent exercise, cannot be affected by the reluctance of the courts in admitting it. Instances illustrating the exercise of equity jurisdiction for the protection of personal...