Ex parte Bighorse

Decision Date04 November 1936
Docket Number27425.
Citation62 P.2d 487,178 Okla. 218,1936 OK 686
PartiesEx parte BIGHORSE.
CourtOklahoma Supreme Court

Rehearing Denied Nov. 17, 1936.

Syllabus by the Court.

1. Upon application for writ of habeas corpus, after commitment, this court will examine only the power and authority of the trial court to act. If the trial court has jurisdiction of the parties and subject-matter and to render the particular judgment rendered, the writ will not issue.

2. Alimony is not a debt within the constitutional and statutory provisions against imprisonment for debt, and a willful failure to comply with an order to pay alimony will be punished by contempt proceedings.

3. A willful failure to comply with an order to pay alimony constitutes a civil and indirect contempt.

4. The writ of habeas corpus cannot be used to perform the office of a writ of error, and its use is limited to those cases in which the judgment and sentence of the court are clearly void. Ulterior motives will not be ascribed to any judgment or sentence of a court of competent jurisdiction.

Original proceeding by Joseph Bighorse for writ of habeas corpus.

Writ denied.

Rehearing denied. BUSBY and WELCH, JJ., dissenting.

Luther P. Lane, of Tulsa, for petitioner.

S. F Goldwyn, of Tulsa, and Carl C. Wever, of Pawhuska, for respondent.


This is an original action in this court brought by Joseph Bighorse as petitioner for writ of habeas corpus. Petitioner in his original and amended applications alleges that he is an incompetent, restricted Osage Indian and that he is unlawfully restrained of his liberty and confined in the common jail of Tulsa county by A. Garland Marrs, sheriff of Tulsa county; that said sheriff has no warrant or commitment for his arrest or detention but purports to act under a judgment of the district court of Tulsa County wherein petitioner was adjudged in contempt of said court for failure to comply with the prior order of the court directing payment of alimony and attorney fees; that said judgment was void as authority for his commitment, since it did not run in the name of the state of Oklahoma as required by section 19, of article 7 of the Constitution and section 19, O.S.1931, and is further void for uncertainty and contradiction and for the reason that it fails affirmatively to show ability on the part of the petitioner to comply with the prior order of the court and to show willful disobedience thereof by the petitioner. Petitioner also alleges that his imprisonment violates section 13, article 2, of the Constitution prohibiting imprisonment for debt and denies him due process of law as provided by section 7, article 2, of the Constitution and denies him the equal protection of the law as required by section 1 of the Fourteenth Amendment to the Constitution of the United States. Petitioner further urges that by virtue of the enabling act, the Acts of Congress and the treaty provisions between the United States and the Osage Tribe the custody and control of his property is confided exclusively to the Secretary of the Interior as an instrumentality of the federal government and that the judgment of the trial court punishing him for an indirect contempt was in effect an effort to coerce a federal agency.

A response has been filed by Ethel Bighorse, the divorced wife of the petitioner. This has been treated apparently by the parties as a response on the part of the sheriff of Tulsa county and without discussing the appropriateness of the procedure we will so treat it. The respondent alleges that the petitioner is sui juris and hence responsible for his obligations, marital or otherwise. Respondent further recites the granting of a decree of divorce by the district court of Tulsa county on July 24, 1935, whereby she was awarded $2,000 as alimony and $200 attorney fees, the filing of a verified application for citation of petitioner requiring him to show cause why he should not be adjudged in contempt for failure to comply with said judgment, the issuance and service of said citation upon the petitioner, his trial and conviction and commitment thereunder to the county jail of Tulsa county, and avers that the district court had plenary jurisdiction in the premises and that the commitment and imprisonment of the...

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