Ex parte Chase

• Decision Date: 14 January 1930
• Docket Number: 20429.
• Citation: 284 P. 294,141 Okla. 75,1930 OK 22
• Parties: Ex parte CHASE.
• Court: Oklahoma Supreme Court

284 P. 294

141 Okla. 75, 1930 OK 22

Ex parte CHASE.

No. 20429.

Supreme Court of Oklahoma

January 14, 1930

Corrected and Refiled Jan. 28, 1930.

Syllabus by the Court.

Where under the provisions of art. 3, c. 70, C. O. S. 1921, a judgment in bastardy is rendered against a putative father and a sum certain awarded for support of the child, and such judgment is secured by bond, note, and mortgage in accord with the court's judgment, thereafter the court is without power to rear-rest the putative father because of default in installments due upon the judgment.

A judgment in bastardy proceedings, where secured as provided in section 8066, C. O. S. 1921, becomes a debt, and imprisonment therefor is in violation of section 13, art. 2 Constitution of Oklahoma, providing "Imprisonment for debt is prohibited, except for the nonpayment of fines and penalties imposed for the violation of law."

Original proceeding in the Supreme Court by E. M. Chase for writ of habeas corpus. Writ granted, and petitioner ordered released.

E. G Wilson, F. C. Swindell, and C. F. Gowdy, all of Tulsa, for petitioner.

Byron Kirkpatrick, M. P. Howser, Christy Russell, and D. Clayton Arnold, all of Tulsa, for respondent.

RILEY J.

On December 9, 1927, upon a plea of guilty, a judgment was rendered in the county court of Tulsa county under the provisions of article 3, c. 70, C. O. S. 1921, in bastardy proceedings, against petitioner. By the judgment petitioner was directed to pay the prosecutrix, Irene Byrnes, the sum of $750 for the support of the child; $50 was directed to be paid, and was paid, instanter, and the remainder in monthly installments of $50 each. The petitioner was further ordered to secure the unpaid installments by the execution of a note and mortgage upon designated real estate and to furnish bond conditioned upon the performance of the obligation. Petitioner executed and delivered the note, mortgage, and bond, and paid the installments as they fell due for a period of five months; thereafter he defaulted.

On June 11, 1928, petitioner filed a motion to vacate the judgment of December 9, 1927, and for leave to withdraw his plea of guilty. This motion was overruled; petitioner attempted to appeal to this court. His purported appeal was dismissed. Chase v. State, 135 Okl. 290, 275 P. 633.

Petitioner in the meantime was cited for contempt for failure to obey the order and judgment of the county court first entered by paying the installments when due. Petitioner pleaded his financial inability to pay, and further that the judgment was void for want of jurisdiction. A trial to a jury was had, and a verdict of guilty rendered.

In the meantime petitioner applied to this court in cause 19650 then pending, for a writ of prohibition to effect a stay of proceedings in the county court for contempt. A rule to show cause was entered, and, upon hearing, abated. By the contempt judgment, petitioner was committed to jail until he paid the sum of $200, then due on installments. He again attempted to appeal to this court from the judgment in contempt, and executed a supersedeas bond securing his release from custody pending appeal. This appeal was dismissed on April 9, 1929, Chase v. State (No. 20200) 136 Okl. 80, 276 P. 486. Upon receipt of mandate below, an alias commitment was issued and executed by the incarceration of petitioner. Whereupon petitioner, after making application to the district court of Tulsa county for habeas corpus, filed his petition herein, and, upon presentation of same to the Vice Chief Justice, a rule to show cause was granted, and the petitioner was released upon the execution of a bond in the sum of $1,000, conditioned upon his abiding the order and judgment herein to be made.

Briefly, it is the contention of petitioner that he is imprisoned for debt in violation of his constitutional rights and in excess of the jurisdiction of the county court by whose order he was committed.

A broad view of power and procedure in the enforcement of judgments in filiation is expressed in 7 C.J. 1003, § 149:

"Ordinarily the mode of enforcing an order of filiation and maintenance is by sci. fa. or by action of debt. In some states, however, the practice is to enforce such an order by execution, and in others to commit defendant to prison until he complies with the order."

"Sec. 150-The imprisonment of a defendant is permissible as a means of enforcing an order of maintenance, where the statute so authorizes * * * such order should not permit the restraint of defendant after the requested bond has been furnished and approved. * * *" People v. Wing, 115 Mich. 698, 74 N.W. 179.

Our statute provides (section 8066, C. O. S. 1921):

"If the accused be found guilty, he shall be charged with the maintenance of the child in such sum or sums, and in such manner as the court shall direct, and with the cost of suit, and execution may issue, immediately, and afterwards from time to time for the collection of any sum or sums ordered to be paid, and in addition thereto the court shall require the defendant to secure the performance of the order of the court, in such manner as the court shall direct."

It is evidence that our statute does not authorize imprisonment as a means of enforcing such an order of maintenance. It may be that a defendant could be coerced into giving security for payment as in Wheeler Case, 34 Kan. 96, 8 P. 276, but, as applied to the facts presented, full compliance with the judgment, as to securing same by note, mortgage, and bond, and in view of the statute affirmatively providing for execution immediately and from time to time for collection by "execution," we are bound to hold that contempt is not one of the remedies available to secure the amount of the award. It is contemplated that there may be an action upon bond against principal and surety, suit upon promissory note as well as foreclosure of real estate mortgage.

The Supreme Court of Oklahoma Territory in Ex parte Comstock, 10 Okl. 299, 61 P. 921, 922, dwelt upon this subject:

"Bastardy proceeding, under our statute, is a special proceeding, in the nature of a civil action, and original jurisdiction is conferred on the probate court in such cases. * * * Nowhere in this chapter is any authority given to imprison for failure to secure the judgment. If such power exists in the court, it could only be in contempt proceedings for failure to comply with the orders of the court, in which case the judgment debtor would be entitled to a day in court and a hearing before he could be committed to prison. * * *"

Most of the states whose statutes we have been enabled to examine contain provisions authorizing the courts having jurisdiction of bastardy proceedings to enforce their judgment by imprisonment of the...