Ex Parte Eager, No. 17310.

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: Christian
• Citation: 79 S.W.2d 136
• Parties: Ex parte EAGER.
• Docket Number: No. 17310.
• Decision Date: 21 November 1934

79 S.W.2d 136 Ex parte EAGER. No. 17310. Court of Criminal Appeals of Texas. November 21, 1934. Respondent's Rehearing Granted January 23, 1935. Relator's Rehearing Denied February 27, 1935.

Commissioners' Decision.

Original habeas corpus proceeding by Henry H. Eager.

Relator remanded.

Ray Marshall and A. S. West, both of San Antonio, for appellant.

Hertzberg & Kercheville, of San Antonio, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

This is an original application for a writ of habeas corpus by the relator seeking to be released from custody under a judgment for contempt.

It appears from the record that the commitment was issued on a mere verbal order of the judge. A district judge has no authority to commit a person for contempt on a mere verbal order. It is necessary that the proceedings be reduced to writing and made a matter of record in the court. Ex parte Ray, 101 Tex. Cr. R. 432, 276 S. W. 709; Ex parte McCraw, 102 Tex. Cr. R. 105, 277 S. W. 699. See, also, 9 Tex. Jur. 632.

It is ordered that the relator be discharged.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Respondent's Motion for Rehearing.

CHRISTIAN, Judge.

Since the original opinion was rendered herein, a supplemental transcript has been filed in this court showing that a judgment of contempt was duly entered in the minutes of the court prior to the issuance of the commitment. Under the circumstances, the case will be considered on its merits.

On the 12th of December, 1933, the grand jury of the Thirty-Seventh district court of Bexar county returned an indictment against relator charging him with willfully deserting his wife, Hilda M. Eager, and neglecting and refusing to provide for her support, she being in necessitous circumstances. On the

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18th of December, 1933, relator's wife applied to the court for an order requiring relator to pay her $10 a week pending the trial of the cause. After a hearing, the trial court entered an order finding relator's wife to be in necessitous circumstances and requiring relator to pay the amount of money requested in the application. The order of the court was complied with by relator until the 8th of March, 1934. On the 29th of January, 1934, while he and his wife were residents of Bexar county, relator went to the republic of Mexico and filed a petition for divorce. His wife was served with copy of the petition in the city of San Antonio, Bexar county, where she resided. She filed no answer and did not appear in the court in Mexico at any time. On the 8th of March, 1934, the Mexican court entered a decree of divorce. From the date last mentioned relator made no further payments toward the support and maintenance of his wife. On the 14th of March, 1934, relator's wife filed a petition in the Seventy-Third district court of Bexar county, seeking to set aside the decree of divorce entered by the Mexican court. On the 6th of September, 1934, after relator had been duly served and had appeared and answered, the Seventy-Third district court entered an order holding the divorce decree rendered by the Mexican court to be void and unenforceable. Within the time provided by law, relator perfected his appeal from said order to the Court of Civil Appeals for the Fourth Supreme Judicial District, where the appeal is now pending. He filed a supersedeas bond on the 25th of September, 1934.

On the 12th day of September, 1934, relator's wife filed a sworn petition in the Thirty-Seventh district court of Bexar county averring that relator was in contempt of court because of his failure to comply with the order of the court requiring him to pay her $10 a week for support and maintenance, and alleging further that she was in necessitous circumstances. At the time this petition was filed the indictment charging relator with desertion was still pending in the Thirty-Seventh district court. After due notice, a hearing was had. Relator defended on the ground that he had secured a divorce in the Mexican court. It was conceded that his wife was in necessitous circumstances, and that he was able to make the payments required by the order of the court. The court entered an order adjudging relator to be in contempt of court, and providing that he should be committed to jail until he had purged himself by paying $270 in cash into the registry of the court, for the benefit of his wife, that being the aggregate...