Ex Parte Caple
| Decision Date | 14 January 1907 |
| Citation | 99 S.W. 830 |
| Parties | Ex parte CAPLE. |
| Court | Arkansas Supreme Court |
Certiorari to Circuit Court, Sebastian County; Daniel How, Judge.
Certiorari by John Caple to review the judgment of the circuit court of Sebastian county in denying relator a discharge in habeas corpus proceedings brought by him to obtain his release from the custody of the sheriff, under an order in a suit for divorce against relator by Pearl Caple. Writ quashed, and judgment affirmed.
C. T. Wetherby, for petitioner. T. B. Pryor, amicus curiæ.
The facts in this case are that Pearl Caple brought an action for divorce against her husband, John Caple, and afterwards filed a petition for maintenance, temporary alimony, and allowance of attorney's fees. On the hearing of this petition the following order was made: "Comes the parties, and the petition for temporary alimony being heard upon evidence, the court orders the defendant to pay to the clerk for the benefit of the plaintiff $20.00 per month, beginning with the 15th day of December, 1906, and to pay $25.00 for her attorney's fee within 60 days, and $5.00 for her cost, and the defendant is required to give bond in the sum of $250.00, with security to the approval of the sheriff, conditioned to pay said sum, and the sheriff is ordered to take into custody the said defendant, and in default of his making said bond commit to jail until the further orders of the court." The defendant failed to give bond and was committed to jail. He afterwards filed a petition and obtained a writ of habeas corpus from the judge of the circuit court. The sheriff who had custody of the defendant made a response to the writ by bringing the defendant before the circuit judge, and by stating in writing that he held the defendant in obedience to the order of the chancery court above referred to; that "upon the rendering of said decree or order he immediately took petitioner into custody, and still detains him, and his sole authority for so doing is the said decree or order; that petitioner has so far been unable to furnish said bond, although he has been given all opportunity requested by petitioner, and has allowed him to go in custody to see friends and relatives in different parts of this county." After hearing the matter, the judge held that the petition for a discharge should be denied, and he remanded the prisoner. This judgment of the circuit court is brought before us by writ of certiorari for review.
We have before us in this case nothing but the petition for the writ of habeas corpus, the judgment of the chancery court ordering the defendant in the custody of the sheriff with leave to give bond in the sum of $250 conditioned to perform the judgment of the court, and the return of the sheriff to the writ of habeas corpus, stating that defendant has been allowed every opportunity to give bond, but has failed to do so, and that he holds him in custody by virtue of the order of the chancery court. As neither the complaint in the action for divorce, nor the petition of Mrs. Caple for temporary maintenance and attorney's fees, nor the evidence produced before the court on the hearing of the petition are before us, we must presume that the pleadings and the evidence were sufficient to sustain the judgment rendered by the chancery court, if it can be sustained on that theory. Now, when this order was made, the action for divorce had been commenced, and the defendant had been summoned. He had notice of the petition for temporary alimony and appeared and was present in court when the case was heard. The court...
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