Ex Parte Lohmuller

• Decision Date: 22 June 1910
• Citation: 129 S.W. 834
• Parties: Ex parte LOHMULLER.
• Court: Texas Supreme Court

Page 834

129 S.W. 834

Ex parte LOHMULLER.

Supreme Court of Texas.

June 22, 1910.

Application for habeas corpus by Bernhard Lohmuller. Writ denied, and relator remanded.

David J. Powell, for relator.Wm. Aubrey, for respondent.

WILLIAMS, J.

Relator seeks to be discharged from the custody of the sheriff of Bexar county, in which he is held under a commitment from the district court of the Thirty-Seventh district for comtempt of court, consisting in his refusal to obey an order entered in a divorce suit requiring him to pay weekly a sum of money to his wife as alimony.The suit for divorce was brought by him against his wife and resulted in a judgment granting his prayer from which the defendant, Mrs. Lohmuller, appealed, after which the term of court was finally ended by adjournment.A few days afterwards, but at the next term, Mrs. Lohmuller applied to the court for an allowance of alimony to be paid pending the appeal, and, after hearing, the order was made for refusal to obey which the relator was afterwards adjudged guilty of contempt and committed.No question is raised as to the sufficiency of the proceedings, except the contention that the court had no power, after having entered the final judgment in the divorce suit and adjourned for the term, to make the further order complained of.Nothing was said concerning alimony in the pleadings or the judgment in the suit.The explanation of the omission, given at the hearing of the subsequent application for alimony, was that relator had made provision for the support of his wife and children up to the time of the trial and judgment, and in his testimony at the trial of the cause expressed his willingness that the children should remain in her custody as well as his intention to continue to make such provision thereafter, but that after the court had rendered judgment granting the divorce to him and the custody of the children to the wife, and after she had taken the appeal, he discontinued all contribution to their support.

The rule that judgments, after the expiration of the terms at which they are rendered, pass beyond the power of the court to set aside or alter them is well settled.Whatever they adjudicate remains adjudicated, and the court, although it may afterwards correct certain kinds of mistakes in the entries or grant equitable relief against them, cannot, in general, change their effect as adjudications.But this principle does not necessarily determine what other things the court may lawfully do in a cause after final judgment, since final judgment, while it generally exhausts the jurisdiction of the court over the subject-matter and the parties, does not always and necessarily put an end to the power to make other orders not inconsistent with the adjudication.The jurisdiction sometimes remains to take action authorized by law in the cause for the protection of persons or property in the control of the court, the necessity for which may arise after the judgment has been pronounced, and the proper exercise of which may be entirely consistent with the integrity of the final judgment and therefore not affected by the rule of law on which relator relies.

The statute concerning divorces empowers "the judge," either in term time or vacation, to allow a wife who has not sufficient income for her maintenance, "during the pendency of the suit for divorce," a sum for her support "until a final decree shall be made in the case."Rev. St. art. 2986.This is a power incidental to the jurisdiction over the suit for divorce in the exercise of which it becomes the duty of the court to see to the proper support and maintenance of the wife until it can be determined in the course of the proceeding whether or not she is to remain a wife.The full accomplishment of the purpose for which the power is granted requires that it last as long as the occasion for its exercise shall last, that is, "during the pendency of the suit," and hence the "final decree" —that is, to put an end to the power— is that "made in the case"(not necessarily that made by the district judge or the district court).The decree of the trial court granting or denying the divorce may be the final decree of that court, but it is not the final decree "made in the case" when an appeal is taken to another tribunal.So long as the appeal is pending the suit is pending, and the occasion specified in the statute for the allowance of alimony continues, and it does not end until that decree is pronounced which puts an end to the case.The nature of the power is such as to make it incompatible with the notion that...