Ex parte Henderson, s. 6096

• Decision Date: 07 March 1957
• Docket Number: 6097,Nos. 6096,s. 6096
• Citation: 300 S.W.2d 189
• Parties: Ex parte HENDERSON, Appellant. A. L. HENDERSON, Appellant, v. Carolynne M. HENDERSON, Appellee.
• Court: Texas Court of Appeals

Page 189

300 S.W.2d 189

Ex parte HENDERSON, Appellant.

A. L. HENDERSON, Appellant, v. Carolynne M. HENDERSON, Appellee.

Nos. 6096, 6097.

Court of Civil Appeals of Texas, Beaumont.

March 7, 1957.

Baldwin & Goodwin, Beaumont, for appellant.

Harold Peterson, Beaumont, for appellee.

R. L. MURRAY, Chief Justice.

A. L. Henderson is the appellant in these two appeals from two district courts of Jefferson County, and at the request of and on motion of both parties to the controversies, the appeals were consolidated and presented together.

In Cause No. 6097, in which A. L. Henderson is the appellant and Caroynne M. Henderson, his former wife is the appellee, the appellant was adjudged guilty of contempt because of his failure and refusal to make child support payments in accordance with a decree of divorce rendered in the state of Mississippi, June 29, 1953. In the suit filed upon such judgment in the district court of Jefferson County, after due notice and a hearing, the appellant was held in contempt and committed to the county jail of Jefferson County until he shall purge himself of contempt by paying the sum of $3,100 as child support payments to the Jefferson County Child Support Office, he being adjudged in arrears in his payments in that amount. This judgment was rendered and entered August 16, 1956. Thereafter on August 28, 1956, in the same case, the same court, at the request of the appellant, A. L. Henderson, conducted a hearing on the question of appellant's ability to pay the sum of money directed in the judgment. The court found that the appellant was well able to pay this sum of money and found that he should continue to be restrained in the county jail of Jefferson County as set forth in the original judgment of August 16, 1956. On September 7, 1956 appellant gave notice of appeal to his court from said judgment of contempt. He has later, by filing a transcript in this court, attempted to appeal from said judgment.

We use the word 'attempted' advisedly for the reason that our appellate jurisdiction does not extend to judgments of contempt. The only manner in which such procedure and judgment can be reviewed is by means of a collateral attack by means of a habeas corpus proceeding. See: Mitchell v. Mitchell, Tex.Civ.App., 266 S.W.2d 252; Tims v. Tims, Tex.Civ.App., 204 S.W.2d 995, writ refused.

In Cause No. 6097, A. L. Henderson vs. Carolynne M. Henderson, the appeal is dismissed for want of jurisdiction in this court.

The companion case, No. 6096, Ex parte Henderson, Appellant, is an appeal from a judgment in the Criminal District Court of Jefferson County in a habeas corpus proceeding. On August 30, 1956, the appellant, A. L. Henderson, sought release by habeas corpus from confinement in the county jail of Jefferson County by virtue of the judgment and order of commitment noted above in the contempt proceeding. In his application for writ of habeas corpus in the instant case, the appellant contended that such order of judgment or order was void for the following reasons: (1) the testimony at the hearing in said case was not transcribed by a court reporter; (2) the Mississippi judgment sued upon in the contempt proceedings was not properly proved in that the certified copies of the judgment and other orders were not properly authenticated. Also, in the alternative, in said application, the appellant says that if it appears that said decrees and judgment of contempt are not void, that he should be released from the part of the order which requires him to pay the sum of $3,100 to purge himself of contempt, because the evidence shows that he was unable to pay such sums, and that such a judgment is tantamount to a life sentence for him. To his petition he attached copies of the proceedings in the contempt case filed and heard, including the petition, with attached exhibits, the order to show cause, the citation and return, docket sheet notations, judgment and order of August 16, 1956, and his original answer.

The parties at the time of the hearing on the application of habeas corpus, August 30, 1956, in the Criminal District Court of Jefferson County, entered into the following stipulations:

'Comes now your petitioner, A. L. Henderson, by and through W. J. Baldwin, one of his attorneys herein, and also comes now C. H. Charley Meyer, Sheriff of Jefferson County, Texas, Respondent herein, by and through Harold Peterson, his attorney in this proceeding, and on this 30th day of August, 1956, prior to the introduction of any evidence herein, do stipulate and agree as follows, to-wit:

(1) That writ of habeas corpus was duly issued on August 30, 1956, in this cause;

(2) That due and proper service thereof upon C. H. Charley Meyer, Sheriff of Jefferson County, Texas, has been had;

(3) That due and proper return has been made upon such writ by the said C. H Charley Meyer, Sheriff of Jefferson County, Texas;

(4) That the said C. H. Charley Meyer, Sheriff of Jefferson County, Texas, has in his custody and under his restraint the said A. L. Henderson, as stated in the petition of the said A. L. Henderson; that he took and now detains the said A. L. Henderson by virtue of the authority of writ of commitment issued by the clerk of the District Court of Jefferson County, Texas, on August 16, 1956, in accordance with judgment of the Court dated August 16, 1956, in Cause No. D-70,136, District Court, Jefferson County, Texas, styled Carolynne Marlin Henderson vs. A. L. Henderson, and in accordance with said judgment, dated August 16, 1956, copy of which was then delivered to him;

(5) That prior to the introduction of any evidence herein the said C. H. Charley Meyer did produce the said A. L. Henderson before the Court in compliance with the Court's order to do so, such order being dated August 30, 1956;

(6) That all matters in connection with the issuance of the writ, the service and return of same and return of same and the regularity and validity of the commitment under which the said A. L. Henderson has been, and is being, detained, are in due and proper form and in accordance with law, and any irregularities therein are hereby waived in all things;

(7) That the parties by and through their attorneys stipulate and agree that it is their intention herein to confine the inquiry of the Court on this hearing to the question of whether or not the judgment of the Court entered in said Cause No. D-70,136 on August 16, 1956, and the order of the Court entered in said Cause on August 28, 1956, form a valid basis for the detention of the said A. L. Henderson by the said C. H. Charley Meyer, Sheriff of Jefferson County, Texas; in this connection it is understood and agreed that petitioner does not waive his right to assert the invalidity of said judgment of August 16, 1956, on the grounds that no record of the testimony was made at such hearing held on such date by the Court, it being the petitioner's position that the failure to make a record of the testimony on such date renders such judgment void and of no effect;

(8) It is further stipulated and agreed that a copy of this instrument shall be presented to the Court for approval prior to the introduction of evidence herein and shall be considered by the Court in all things in connection with hearing on petitioner's application for writ of habeas corpus.'

The Court entered the following judgment:

'This day came on to be heard before me the application for Writ of Habeas Corpus against C. H. Charley Meyer, Sheriff of Jefferson County, Texas, and the respondent, C. H. Charley Meyer, having made due return of said writ of habeas corpus herein served upon him and having produced before me the person of the said A. L. Henderson, I proceeded to hear the application. And after having examined the writ and the return of the respondent, C. H. Charley Meyer, and all the papers and documents attached thereto and having heard the testimony offered on both sides, I am of the opinion that the said A. L. Henderson is legally held in custody and under restraint of his liberty by the said respondent, C. H. Charley Meyer.

'It is therefore Ordered, Adjudged and Decreed that the relief sought for by relator, A. L. Henderson, in his application for writ of habeas corpus which has been duly heard be denied and that his release under the contempt order and the contempt judgment as herein entered be denied, and that the said A....