Ex Parte Norton

• Decision Date: 12 June 1929
• Docket Number: (No. 1299-5400.)
• Parties: Ex parte NORTON.
• Court: Texas Supreme Court

17 S.W.2d 1041

Ex parte NORTON.

(No. 1299-5400.)

Commission of Appeals of Texas, Section A.

June 12, 1929.

Original habeas corpus proceeding by J. F. Norton to secure release from an alleged restraint of liberty. Relator discharged.

John G. Wilson, of Dallas, for relator.

Frank Rawlings, of Fort Worth, for Mrs. Norton.

Statement of the Case.

CRITZ, J.

This is an original habeas corpus proceeding in which relator, J. F. Norton, seeks release from an alleged restraint of his liberty. It appears from the contempt order and the record before us that on May 28, 1927, relator filed suit in the 101st district court of Dallas county, Tex., for a divorce against his wife, Mary Norton. Various proceedings were had in this suit not necessary to relate in this opinion. At some time prior to January 4, 1928, the wife, who contested the divorce and filed no cross-action for a divorce herself, filed a motion for alimony. On January 4, 1928, the relator and his wife both being present, the court heard the motion for alimony, and made an entry on his trial docket allowing the wife alimony in the sum of $15 per week, during the pendency of the divorce suit. This docket entry, so far as shown by the record, was never carried to the minutes of the court. At some time after January 7, 1928, the relator took the matter of payment of alimony up with the court, and the court instructed relator orally that he would suspend the payment of alimony until the hearing of the divorce suit. On February 15, 1929, the divorce suit was tried by jury, and judgment entered for the wife denying the relator a divorce. This judgment was set aside and a new trial ordered on April 6, 1929.

Immediately after the new trial was ordered, and on said date of April 6, 1929, the wife requested the court to hear and determine a motion for contempt she had theretofore filed on account of the failure of relator to pay alimony in accordance with the docket order of January 4, 1928. After said request and on that date, the court then and there entered the following decree in his minutes:

"J. F. Norton v. Mary Norton, No. 68965-E. In the 101st District Court in and for Dallas County, Texas.

"On this the 6th day of April came on to be heard the motion of the defendant, Mary Norton, to have the plaintiff, J. F. Norton, adjudged in contempt of Court for his failure to pay alimony to the defendant under the order of this court heretofore made and entered on the 31st day of December, 1927, by the terms of which plaintiff was required to pay to the clerk of this court for the benefit of defendant the sum of $15.00 per week and it appearing to the Court that the plaintiff has wholly failed to comply with said order except for the payment of one week's alimony thereunder and the Court being fully advised in the premises is of the opinion that the plaintiff should be required to pay to the defendant back alimony under said order at the rate of $15.00 per week since the 15th day of February, 1929, and during the further pendency of this suit.

"It is therefore ordered, adjudged and decreed by the Court that the plaintiff, J. F. Norton, pay to the defendant, Mary Norton, alimony at the rate of and in the sum of $15.00 per week since and including February 15, 1929, and during the further pendency of this suit; and it is the further order of this court that all of said alimony accumulating since February 15, 1929, to the date of this order shall be paid by the plaintiff to the clerk of this court for the benefit of the defendant on or before Wednesday, April 10, 1929, and on said date he shall also pay to the clerk for her benefit the weekly payment of $15.00 maturing on Friday, April 12, 1929, and shall after said last named date pay to the clerk for the benefit of the defendant on or before Friday of each week during the further pendency of this suit the sum of $15.00.

"It is also ordered by the Court that further action on the motion to have the...