Ex parte Nix, A-2673

Decision Date14 June 1950
Docket NumberNo. A-2673,A-2673
PartiesEx parte NIX.
CourtTexas Supreme Court

Mat Davis, Gilmer, for petitioner.

F. L. Garrison, Milton Greer Mell, and Power, McDonald and Mell, all of Gilmer, for respondent, Bobbie Jean Nix.

HICKMAN, Chief Justice.

By this original proceeding the relator seeks relief from an order of the District Court of Upshur County adjudging him in contempt of court. In pursuance of that order a commitment was issued and the relator was lodged in the county jail. The contempt of which relator was adjudged guilty was his failure to comply with a judgment theretofore rendered against him in an action for divorce brought by his wife, Bobbie Jean Nix, requiring him to contribute $25 per month, beginning on September 1, 1949, to the support of his infant daughter, Jewel L. Nix, then aged 2 1/2 years.

We granted relator's motion for leave to file this proceeding and ordered him released temporarily from the custody of the sheriff, pending the hearing of the cause on the merits, primarily upon the ground that the complaint forming the basis of the contempt hearing was sworn to by relator's divorced wife before F. L. Garrison, her attorney of record. It had been held by this court that a motion seeking to have one adjudged guilty of constructive contempt could not be subscribed and sworn to before the attorney of the movant as notary public, and that an order of contempt based thereon was void. Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306, 126 S.W.2d 626; Ex parte Freeman, 144 Tex. 392, 191 S.W.2d 6. Upon further consideration it is made to appear that the proposition of law declared in those authorities has no application in this proceeding. Under Texas Rule of Civil Procedure 308-a, which became effective March 1, 1950, when the court in a divorce proceeding has ordered periodical payments for the support of a child or children, a claim that such order has been disobeyed may be filed with the clerk in the form of a written statement describing the claimed disobedience, which statement need not be verified. Ex parte White, Tex.Sup., 229 S.W.2d 1002. It appears that the statement filed in this proceeding was dated March 2, 1950, one day after this rule became effective. Since no affidavit was required it is immaterial that the statement in this case was sworn to before affiant's attorney.

Another contention is that the judgment of contempt is void because the punishment to be inflicted is uncertain. The...

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5 cases
  • Ex parte Helms
    • United States
    • Texas Supreme Court
    • June 17, 1953
    ...v. United States, 326 U.S. 733, 66 S.Ct. 41, 90 L.Ed. 436, rehearing denied, 326 U.S. 808, 66 S.Ct. 137, 90 L.Ed. 493; Ex parte Nix, 149 Tex. 267, 231 S.W.2d 411, certiorari denied 340 U.S. 840, 71 S.Ct. 28, 95 L.Ed. 616. Of course this court has jurisdiction to and will intervene by writ o......
  • Ex parte Winfree
    • United States
    • Texas Supreme Court
    • December 16, 1953
    ...notice by timely service of the latter and in due course afford a proper hearing. Rule 308A, Tex.R.Civ.Proc., reaffirmed in Ex parte Nix, 149 Tex. 267, 231 S.W.2d 411, certiorari denied, 340 U.S. 840, 71 S.Ct. 28, 95 L.Ed. 616, expressly provides for such a procedure in cases of contempt fo......
  • Houston Chronicle Pub. Co. v. McMaster
    • United States
    • Texas Court of Criminal Appeals
    • May 14, 1980
    ...105 (1863); Legate v. Legate, 87 Tex. 248, 28 S.W. 281 (1894); Worden v. Worden, 148 Tex. 356, 224 S.W.2d 187 (1949); Ex parte Nix, 149 Tex. 267, 231 S.W.2d 411 (1950) cert. denied, 340 U.S. 840, 71 S.Ct. 28, 95 L.Ed. 616 (1950); Ex parte Ramzy, 424 S.W.2d 220 (Tex.1968): "In such a proceed......
  • Garza v. Fleming, 13451
    • United States
    • Texas Court of Appeals
    • March 11, 1959
    ...v. State of Texas, 326 U.S. 733, 66 S.Ct. 41, 90 L.Ed. 436, rehearing denied, 326 U.S. 808, 66 S.Ct. 137, 90 L.Ed. 493; Ex parte Nix, 149 Tex. 267, 231 S.W.2d 411, certiorari denied 340 U.S. 840, 71 S.Ct. 28, 95 L.Ed. Appellant's point that the court erred in striking and refusing to consid......
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