Ex Parte Mylius.
| Citation | 61 W.Va. 405 |
| Parties | Ex Parte Mylius. |
| Decision Date | 26 February 1907 |
| Court | Supreme Court of West Virginia |
1. Contmpt. Rule to Show Cause Service.
A rule to show cause why a person shall not be adjudged guilty of contempt must be served in person on the party charged, (p. 40G.)
2. Same Commitment Habeas Corpus.
A judgment or order committing to jail upon a charge of contempt in disobeying a decree, made in the absence of the person? is void, and a person imprisoned under it will be relieved by a writ of habeas corpus, (p. 407.)
Error to Circuit Court, Randolph County.
Application by Charles F. Mylius for writ of habeas corpus to Floyd McDonald, sheriff. From an order denying the writ, petitioner brings error.
Reversed.
W. B. Maxwell, for plaintiff in error. Beannon, Judge:
Nancy E. Mylius brought a suit in the circuit court of Randolph county against her husband, Charles F. Mylius, to obtain a divorce. The court made an order in the suit requiring the husband to pay certain sums of money to the wife for expenses of her suit and alimony during the pendency of the suit. Charles F. Mylius having failed to pay said money, on the motion of the wife the court awarded a rule requiring-him to appear on a day certain to show cause why he should not be adjudged to answer for contempt of the court in disobeying said order. Later the court made an order, both in the chancery and the law order books, which, after reciting that Charles F. Mylius had not complied with the order of the court requiring such payment, and that he had not answered the rule aforesaid, and that he had not shown any cause why he should not be attached or otherwise proceeded against for his failure therein, contained the following language: "It is ordered that the sheriff of the county of Randolph do attach the body of the said Charles F. Mylius and keep him in safe custody in the jail of Randolph county until the further order'of this court." Later Charles F. Mylius obtained, on his petition, from Judge Reynolds of the Sixteenth Circuit, a writ of habeas corpus, to obtain release from said jail of Randolph county under the said order of imprisonment, and upon hearing of the said writ said Mylius was remanded to the custody of the sheriff of Randolph county, and from this judgment Mylius sued out the writ of error which we now decide.
The writ of habeas corpus cannot be used to effect the function of a writ of error or appeal. It is used to relieve from imprisonment under a judgment that is void. Ex parte Evans, 42 W. Va. 242. If the order of imprisonment is void, Mylius is entitled to release from jail. Therefore, we must see whether that order is void. It does not appear that the rule was in any wise served on Mylius, except that his petition for the writ of habeas corpus states that it was served by posting at the front door of his usual place of abode. Is such a service good? A proceeding for contempt is a criminal proceeding. State v. Irwin, 30 W. Va. 404. It is a criminal x>roceeding, because both fine and imprisonment, or cither, may be imposed for contempt. Now, this rule is the basis of the proceeding in which Mylius was sent to jail. It is the writ of citation to answer the criminal charge of contempt. Criminal process must be served on the person, unless a statute otherwise provides. 1 Bishop, Crim. Pro., sec. 869a; 13 Ency. PL & Prac, 613; Alderson on Process, 313.
The Code, chapter 147, section 29, says that no court shall even fine for contempt, unless the party be present in court, "Or shall have been served with a rule of court to show cause, on some certain day, and shall have failed to appear and show cause." Chapter 162, section 14, Code, repeats this prohibition. These chapters treat the subject of contempt, and they do not provide for any non-personal, substitutionary service of process. It is true that chapter 158, providing for process on indictments, says that on an indictment for a misdemeanor a summons may be served under section 1, chapter 121, which allows service in person or on a member of the family or by...
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