Haines v. Haines

• Decision Date: 24 October 1876
• Citation: 35 Mich. 138
• Court: Michigan Supreme Court
• Parties: Angeline Haines v. Charles H. Haines

35 Mich. 138

Angeline Haines v. Charles H. Haines

Supreme Court of Michigan

October 24, 1876

Heard October 18, 1876 [Syllabus Material] [Syllabus Material]

Appeal in Chancery from Kalamazoo Circuit.

Edwards & Sherwood, for complainant, argued that the appeal was without authority and should be dismissed. The principle is elementary, that courts of record have the inherent power to punish for contempt, over which they have exclusive control and their conviction or acquittal therefor is conclusive, and no appeal will lie: State v. Tipton, 1 Blackf. 166; Ex parte Kearney, 7 Wheat. 38; Clark v. People, 1 Breese 226; Bickley v. Com., 1 J. J. Marsh, 575; Martin's Case, 5 Yerg. 456; 2 Bish. Cr. L., § 268; 3 Ala. 94; 32 Vt. 253; Watson v. Williams, 36 Miss. 331; Church v. Muscatine, 2 Clark (Ia.), 69; the sense in which this principle is to be understood is, that there is no appeal to retry the question of contempt; and an appeal may be had to correct an erroneous sentence, or to review questions of jurisdiction arising out of the determination itself: 1 J. J. Marsh, 575; 15 B. Mon., 607; 27 Geo. 476; this principle is clearly stated in Romeyn v. Caplis, 17 Mich. 455; and Brewer v. Kidd, 23 Mich. 441, and Stellar v. Stellar, 25 Mich. 159, are appeals involving jurisdictional questions, upon which the decisions turned.

The present case involves no question of want of complete jurisdiction over the subject matter and the person of defendant in the court below.

The order of November 29, 1875, was for the payment of money for the temporary support and expenses of suit of complainant, and on this appeal it is not open to review.

The defense assumed is the want of means and property and consequent inability to pay, and that there was consequently no wrong in defendant's refusal to pay. This defense must rest on the showing made below, upon which the order appealed from was based. We submit that it is clearly made to appear from that showing that defendant fraudulently sought to evade the order for payment by placing his property and means beyond the reach of the process of the court, and that he wrongfully refused payment of the sums ordered; and the counsel reviewed the facts at length.

Order reversed and vacated, and the remainder affirmed, with costs of this court, in favor of complainant.

Arthur Brown, for defendant, argued that in the absence of any settlement of a case showing what was submitted to the court on the hearing below, the case must be heard on the interrogatories and answers thereto, which constitute the only proper record of the case, and that affidavits on file "or other proofs" stand like testimony taken in open court and can only be considered on appeal when it has been embodied in a settled case: Wright v. Dudley, 8 Mich. 74; Comp. L., § 5707.

No proceedings can be had for contempt for the mere non-payment of money. It is not within the letter of the statute of contempts. Comp. L., p. 1656, § 1, specifies the cases in which parties may be punished by attachment as for contempts. Sub. 3 says that "parties," etc., "for the non-payment of any sum of money ordered by such court to be paid in cases when by law execution cannot be awarded for the collection of such claims," thus clearly providing by inference that if an execution can be awarded, then the party cannot be punished for contempt. And the statute providing for alimony pendente lite, provides explicitly that execution may be awarded to collect the same.--Comp. L., § 4745; and compare § 4759. The legislature, in providing the manner in which alimony may be collected, was careful not to include the punishment by contempt, but specifies almost every other method of collecting money: Comp. L., § 4754. In other states it has been held, on the best authority, that the proper way to collect temporary alimony is by execution: Morton v. Morton, 4 Cush. 518; Piatt v. Piatt, 9 Ohio 37; Lansing v. Lansing, 4 Lansing 37.

To ensure the violation of the order for alimony, complainant's solicitors obtained an injunction at the time of commencing suit, restraining defendant from selling, mortgaging or conveying any of his property, real or personal. There is no shadow of pretense that defendant had a dollar in money outside of that property, or that he had any way to procure it except by sale of it, and yet to prevent his getting money to comply with the order, he is enjoined from selling. If he sell he is guilty of contempt for violating the injunction, and if he don't sell he is guilty of contempt for non-payment of money. Both the court below and the counsel were determined to have this defendant adjudged guilty of something, and such is the exact position in which they placed him in order to do it. The court below argued that it was defendant's duty to get the injunction dissolved; but the defendant had every reason to suppose that the court would deny any application he could make, and certainly the dissolution of an injunction rested in the power of the court, and not in the party defendant. If the failure to have the injunction dissolved was an act of contempt, then it must be that the court itself is the party to be punished.

The facts in this case show that defendant did not have any money with which he could pay the amount ordered to be paid; and the counsel discussed the facts.

The amount of alimony ordered in this case was an outrageous infringement upon the rights of defendant.

At a fair valuation of all his property, at private sale, it might by a bare possibility have brought about enough, over and above his then existing debts, to pay the amount ordered by the court to be paid to Edwards & Sherwood as a solicitor's fee. Without any examination into the merits of the case, on a mere preliminary order, almost immediately after the commencement of suit, a circuit judge directs the defendant to give to the counsel on the other side what little property he is worth, and by his order places him in such a situation that the land which he holds under contract is also taken away from him. If a circuit judge has the power to strip a party of his hard earnings and give it to some attorney, who may be a crony of his, it is about time it was hedged around with some difficulties in the way of collection.

It has been suggested in some cases that the court has power to award temporary alimony to defray expenses of suit only, and not to award alimony for temporary support. The language of the statute sustains that theory: Comp. L., § 4745. And the right to grant alimony is purely statutory: Perkins v. Perkins, 16 Mich. 162.

OPINION

Campbell, J.

The circuit court of Kalamazoo county ordered defendant to make certain payments for expenses of litigation and for temporary support in favor of complainant, who had brought a suit against him for a divorce. The allowance was fifty dollars for solicitor's fee, twenty dollars for securing attendance of witnesses, and twenty dollars a month temporary alimony. This order was made upon full hearing on the 29th of November, 1875.

On the 13th day of June, 1876, after an examination on interrogatories, and the hearing of proofs, defendant was adjudged guilty of contempt, and ordered to pay forthwith the arrears of two hundred and ten dollars and a fine of one hundred dollars, and in default to stand committed for four months unless he should sooner pay the same. He appeals from that order.

It is first objected that an appeal will not lie. This has already been decided in several eases. It was held in People ex rel. Messler v. Simonson, 9 Mich. 492, that such an order was a final order and appealable.--See also People v. Jones, 33 Mich. 303.

Some controversy is also made as to the extent of the jurisdiction on appeal. In all appeals the matter is heard in the appellate court as if it had not been heard before,...