Ex Parte Gerber
| Decision Date | 28 February 1934 |
| Docket Number | 5538 |
| Citation | 29 P.2d 932,83 Utah 441 |
| Court | Utah Supreme Court |
| Parties | EX PARTE GERBER |
Original proceeding by Parley F. Gerber applying for a writ of habeas corpus against the sheriff of Salt Lake county. Temporary writ was granted, the sheriff was directed to make return thereof, and the clerk of the district court on writ of certiorari issued in aid of writ of habeas corpus was ordered to certify proceedings with respect to commitment.
Writ of habeas corpus made permanent, and petitioner discharged from custody.
E. J Skeen, of Salt Lake City, for plaintiff.
Parnell Black, Deputy Co. Atty., and Joseph S. Nelson, both of Salt Lake City, for defendant.
A petition was filed on behalf of Parley F. Gerber for a writ of habeas corpus wherein it was alleged that he was unlawfully detained and restrained of his liberty by the sheriff of Salt Lake County on a judgment of the district court in and for the county of Salt Lake, committing the applicant to the custody of the sheriff to be imprisoned in the county jail for failure to pay monthly payments of $ 30 for the support and maintenance of his wife, Bertha Gerber. It is alleged that the order and judgment are void, chiefly on the ground that there were no pleadings, evidence, or findings to support the order or judgment of commitment. A temporary writ was granted, the sheriff directed to make return thereof, and the clerk of the district court, on a writ of certiorari issued in aid of the writ of habeas corpus, to certify to this court the proceedings had with respect to the commitment.
Briefly stated, it is made to appear that on March 15, 1928, in an action in the district court of Salt Lake county wherein Bertha Gerber was plaintiff and the petitioner, Parley F Gerber, was defendant, a decree of separate maintenance was granted awarding the wife $ 30 a month for her support and maintenance. On January 16, 1934, the defendant, Gerber, in that action filed a petition to modify the decree of separate maintenance to one of divorce. On citation issued, Mrs. Gerber January 29 filed an answer denying the alleged grounds for modification, alleging affirmative grounds resisting the modification, that Gerber was in default in the sum of $ 1,810 for failure to pay the monthly allowances as required to be paid by the decree of March 15, 1928, and that prior proceedings were had in the cause in December, 1928, and in March, 1931, wherein the defendant was found guilty of contempt, and in each instance committed to imprisonment for ten days for failure to pay the monthly awards. Her prayer was "that the defendant recover nothing by his petition (for modification), that it be dismissed, and that the defendant be found in contempt in failing to pay said $ 1810 or any part thereof, and that he be disciplined as this court shall deem just and proper, and that affiant have judgment entered against him for $ 1810.00 as past due under said decree up to May, 1933, and costs." Nothing further was alleged by her in support of the prayer that the "defendant be found in contempt."
On January 29, 1934, the record recites that, the matter coming before the court, the defendants petition for modification of the decree "was on motion of the defendant Gerber dismissed," that the defendant was sworn and examined and, on motion of counsel for the plaintiff, "the further hearing on the order to show cause," for failure to pay the maintenance, was continued to February 16, 1934. On February 15, 1934, Mrs. Gerber filed a supplemental affidavit in which she averred that within the next four months it was "reasonable that the defendant (Gerber) can earn $ 100 above living expenses, that he can reasonably earn said amount at sheep-shearing and hauling; that to send him to jail for contempt would interfere with such earning, because nothing short of a long commitment would have any disciplinary effect; that therefore affiant (Mrs. Gerber) is opposed to such imprisonment at this time; but that defendant has a car--a Chevrolet truck which is very dear to him--and that the requirement that he endorse to affiant his certificate of title as security for payment of $ 100 in...
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