Ex Parte Eager

Decision Date21 November 1934
Docket NumberNo. 17310.,17310.
Citation79 S.W.2d 136
PartiesEx parte EAGER.
CourtTexas Court of Criminal Appeals

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 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 amount due her at the time the order was entered.

Relator's chief contention is that the court was without power to enter the order adjudging him to be in contempt, for the reason that he had been awarded a decree of divorce. He further contends that the court had no power to enter said order because of the fact that he had appealed from the decree of the Seventy-Third district court holding the Mexican divorce decree void. Article 604, P. C., as amended by Acts 1931, c. 38, § 1 (Vernon's Ann. P. C. art. 604) reads as follows: "The Court during its term, or Judge thereof in vacation after the filing of complaint against or after the return of indictment of any person for the crime of wife, or of child, or of wife and child desertion shall upon application of the complainant give notice to the defendant of such application and may upon hearing thereof enter such temporary orders as may seem just, providing for the support of deserted wives and children or both, pendente lite, and may punish for the violation or refusal to obey such order as for contempt."

Article 4637, Revised Civil Statutes 1925, reads as follows: "If the wife, whether complainant or defendant, has not a sufficient income for her maintenance during the pendency of the suit for a divorce, the judge may, either in term time or in vacation, after due notice, allow her a sum for her support in proportion to the means of the husband, until a final decree shall be made in the case."

In construing the article last quoted, the civil courts have held that the allowance of alimony by the district court pending appeal is proper, whether the divorce shall have been granted or denied by the trial court. Further, it is held that the trial court has the power to enforce payment pending appeal. Williams v....

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7 cases
  • Ex parte Supercinski, 55496
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • October 11, 1977
    ...Tex. 627, 306 S.W.2d 884; Ex parte Smart, 152 Tex. 229, 256 S.W.2d 398; Ex parte Palmateer, 150 Tex. 510, 243 S.W.2d 160; Ex parte Eager,128 Tex.Cr.R. 97, 79 S.W.2d 136; Ex parte Ray, 101 Tex.Cr.R. 432, 276 S.W. 709; Ex parte Alderete, 83 Tex.Cr.R. 358, 203 S.W. 763; Ex parte Hardin,161 Tex......
  • Ex parte Hardin
    • United States
    • Supreme Court of Texas
    • February 22, 1961
    ...... Ex parte Martinez, Tex., 331 S.W.2d 209; Ex parte Puckitt, 159 Tex. 438, 322 S.W.2d 597; Ex parte Arapis, 157 Tex. 627, 306 S.W.2d 884; Ex parte Smart, 152 Tex. 229, 256 S.W.2d 398; Ex parte Palmateer, 150 Tex. 510, 243 S.W.2d 160; Ex parte Eager, 128 Tex.Cr.R. 97, 79 S.W.2d 136; Ex parte Ray, 101 Tex.Cr.R. 432, 276 S.W.709; Ex parte ......
  • Ex parte Martinez
    • United States
    • Supreme Court of Texas
    • January 27, 1960
    ...627, 306 S.W.2d 884; Ex parte Smart, 152 Tex. 229, 256 S.W.2d 398; Ex parte Palmateer, 150 Tex. 510, 243 S.W.2d 160; Ex parte Eager, 128 Tex.Cr.R. 97, 79 S.W.2d 136; Ex parte Ray, 101 Tex.Cr.R. 432, 276 S.W. 709; Ex parte Alderete, 83 Tex.Cr.R. 358, 203 S.W. The relator is discharged. ...
  • Harbison v. McMurray
    • United States
    • Court of Appeals of Texas
    • March 26, 1942
    ...358, 203 S.W. 763; Ex parte Ray, 101 Tex.Cr.R. 432, 276 S.W. 709; Ex parte McGraw, 102 Tex. Cr.R. 105, 277 S.W. 699; Ex parte Eager, 128 Tex.Cr.R. 97, 79 S.W.2d 136. A fortiori a notary public has no such If the writ of commitment which was signed by the notary can be considered as a writte......
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