Ex parte Caple

• Decision Date: 14 January 1907
• Parties: Ex parte CAPLE
• Court: Arkansas Supreme Court

99 S.W. 830

81 Ark. 504

Ex parte CAPLE

Supreme Court of Arkansas

January 14, 1907

Certiorari to Sebastian Circuit Court; Daniel Hon, Judge affirmed.

Judgment affirmed.

C. T Wetherby, for petitioner.

The chancery court was without power to order the petitioner into custody until after there had been an adjudication that he had wilfully disobeyed the valid orders of the court. While the court had the jurisdiction to make the order requiring the payment of the sums of money named in the order, and to require of petitioner the execution of a bond to that end, yet he was entitled to a reasonable time in which to make the bond, and, upon failure therein, should have had an opportunity to show cause why he had not obeyed the order. The court ought not to anticipate a contempt and place the petitioner in custody before he had violated its order. Kirby's Dig. §§ 2679, 719-730; 4 Wis. 522; 11 S.W. 669.

T. B. Pryor, for respondent.

1. In the absence of a bill of exceptions, all presumptions are in favor of the action of the court, and that the chancery court had jurisdiction to make the order.

2. Of the remedies provided in the statute, Kirby's Dig. §§ 2679 to 2682, that of execution and also of sequestration of defendant's property and of property of securities were impracticable, because defendant had no leviable property, nor any securities. Hence, the court could only exact a bond, which was fixed at a reasonable sum, and require security, in order to compel obedience to its order. And, in view of defendant's declarations that he would not obey the order of the court to pay alimony, it would have been idle to trust him to furnish security voluntarily, and it was necessary to hold him in custody until the bond was furnished.

OPINION

RIDDICK, J.

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: "Come 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 per month, beginning with the 15th day of December, 1906, and to pay $ 25, her attorney's fee, within 60 days, and $ 5 for her cost, and the defendant is required to give bond in the sum of $ 250, 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...