Ex Parte Davis

• Decision Date: 17 June 1908
• Parties: Ex parte DAVIS.
• Court: Texas Supreme Court

Page 394

111 S.W. 394

Ex parte DAVIS.

Supreme Court of Texas.

June 17, 1908.

Habeas corpus on petition of F. M. Davis. Petition dismissed, and relator remanded.

F. D. Cosby, for relator. Chas. A. Rasbury, for respondent.

BROWN, J.

The relator presented to this court his petition for writ of habeas corpus, praying that he be discharged from the custody of the sheriff of Dallas county, by whom he is held under commitment for contempt of the district court, Forty-Fourth district, in Dallas county. It will appear from the statement that the order of commitment was entered in a civil proceeding. The application was granted, and the case submitted to this court, on the following undisputed facts:

Mrs. S. J. Davis, the wife of relator, instituted a suit in the Forty-Fourth district court of Dallas county against relator for a divorce from the bonds of matrimony and for the custody of their two minor daughters. Prayer was also made for alimony and for an allowance for attorney's fees. Upon application for alimony and attorney's fees, made before the presiding judge of that court, it was shown that Mrs. Davis was without means to support herself and children, and that relator was earning $212 per month. There was no contest over the fact that Davis was able to pay the amount which was allowed by the court. Upon a hearing, to which Davis was duly notified and appeared, the court entered an order allowing the plaintiff $100 attorney's fees, and it was also ordered that Davis pay into the court $80 per month for each month, to be paid over to Mrs. Davis for the support of herself and her minor children during the pendency of the suit. Respondent refused to pay the alimony or attorney's fees, and plaintiff in the case filed a motion before the court, upon which respondent was duly cited and appeared, in which motion it was alleged that Davis had refused to pay the sum adjudged by the court to be by him paid for alimony, and it was prayed by the motion that he be adjudged to be in contempt of court, and that he be committed to prison until he should comply with the order of the court. At this hearing Davis offered no excuse for his failure and refusal to pay the money allowed by the court, but simply contended that the allowance was a debt against him, and that the court had no power to commit him for contempt for a refusal to pay the debt. After hearing the evidence and arguments upon the motion, the honorable court made the following order: "And it further appearing to the court that, since the entry of the above order requiring the payment of alimony, the defendant has earned $1,272, and has contributed nothing to the support and maintenance of his family, and offers no excuse for so doing other than that by law he is not required to do so, and yet refuses and declines to pay the amount of alimony set out in said order, and has not to the date of this order paid any portion of the alimony directed to be paid, it is the opinion of the court that the defendant is in contempt of the orders and decrees of this court. It is therefore ordered, adjudged, and decreed by the court that the defendant, said F. M. Davis, is in contempt of this court in refusing to obey its mandate and decree, and he is therefore hereby held and decreed to be in contempt of this court, and in punishment therefor is hereby committed to the county jail of Dallas county, Tex., and shall be confined therein until such time as he shall purge himself of such contempt by complying with the order of this court. It is further ordered, adjudged, and decreed, and the sheriff of Dallas county is hereby commanded and directed to seize and take charge of said defendant, F. M. Davis, and hold and confine him in the county jail of Dallas county, Tex., subject to the further orders of this court." Davis still refused to pay the sum adjudged against him as alimony for his wife, as well as attorney's fees, and on the 21st day of May, 1908, a commitment was duly issued against the said Davis, directed to the sheriff of Dallas county, under which he was arrested and confined.

The relator submits his case upon this proposition: "The judgment rendered in favor of Mrs. Davis for alimony is a debt, and cannot be collected by a proceeding for contempt, nor can the defendant be imprisoned therefor." In support of his proposition that he cannot be imprisoned because of his refusal to pay the amount assessed against him as alimony for his wife and children, relator cites Ward v. Ward, 1 Paschal's Digest of Decisions, § 1837; Ex parte Gerrish, 42 Tex. Cr. R. 114 57 S. W. 1123; Ex parte Ellis, 37 Tex. Cr. R. 539, 40 S. W. 275, 66 Am. St. Rep. 831; Lott v. Kaiser, 61 Tex. 665. Ward v. Ward was decided by Associate Justice J. H. Bell of the Supreme Court of this state upon a writ of habeas corpus, at chambers, in the year 1861. There is no report of the case, and we have not been able to ascertain the facts upon which the decision was based. Under these conditions it can have no weight as authority. In Lott v. Kaiser the contest was over a conveyance which had been made by one of the parties to defeat the claim of his wife for alimony; the deed being made during the pendency of the suit for divorce. In deciding the case the Supreme Court, speaking by Judge Stayton, said: "It seems to be well settled that, pending a divorce suit, a wife asserting a just claim for alimony is, within the meaning of the statutes prohibiting fraudulent conveyances, to be deemed a creditor." This does not establish the proposition that her claim was a debt within the meaning of the Constitution, nor that she was a creditor, but that under the circumstances she was entitled to the same protection against the fraudulent conveyance that a creditor would be. Ex parte Gerrish was a writ of habeas corpus before Judge Brooks of the Court of Criminal Appeals. In a suit for divorce against Gerrish, by agreement between himself and...