Herman v. Brennan
| Citation | 236 Mich. 604,211 N.W. 52 |
| Decision Date | 08 December 1926 |
| Docket Number | Motion No. 93. |
| Parties | HERMAN v. BRENNAN, Circuit Judge. |
| Court | Supreme Court of Michigan |
OPINION TEXT STARTS HERE
Mandamus by Sadie Hobar Herman against Vincent M. Brennan, Wayne Circuit Judge, to review an order dismissing a proceeding by Sadie Hobar Herman against John Hobar for an alleged contempt of court in not paying money decreed for the support of his divorced wife and daughter. Writ denied.
Argued before the Entire Bench.
Joseph Fabian, of Detroit, for appellant.
O. K. Underwood, of Detroit, for appellee.
This is a review of an order dismissing a proceeding against John Hobar for an alleged contempt of court in not paying money decreed for the support of his divorced wife and infant daughter.
In 1916, Hobar's wife filed a bill for divorce in the Wayne circuit, set up therein that the parties had a daughter, then four years of age, and asked for her care, custody, and education. The bill did not ask for alimony for the wife or support money for the child. The summons issued and served on Mr. Hobar had no underwriting stating whether the bill prayed for alimony or custody of the child.
Circuit court rule No. 19, § 4, relative to a chancery summons, provides that in a divorce case the underwriting shall state whether or not alimony or custody of children is prayed for in the bill. The purpose of the rule is manifest, its fairness is appealing, and its mandate must be obeyed. The reason for the omission was probably because the bill did not ask for alimony. But even in such a case the rule requires the underwriting to say so. The bill did ask for the custody of the child, and the underwriting should have so informed Mr. Hobar. The summons not containing the information he was entitled to have, Mr. Hobar employed an attorney, caused his appearance to be entered in the case, and claims the attorney advised him that the bill did not pray for alimony for the wife or money for the maintenance of the child. No answer to the bill was filed, and we assume it was taken as confessed. Mr. Hobar's appearance in the case gave him a right to have notice of all subsequent proceedings served upon his attorney. A decree of divorce was granted plaintiff, and without any amendment to the bill or summons and without notice to defendant, the court awarded the custody of the child to the plaintiff, and ordered the defendant therein to pay $4 each week, in advance, for the support of plaintiff and the child. There is no allegation that a copy of the decree was served upon the attorney for defendant or upon defendant at any time, and Mr. Hobar claims no copy was ever served. A copy of the proposed decree, with notice of settlement, should have been served upon defendant's attorney. The statute, section 12457, C. L. 1915, so provides. This applies even after the bill is taken as confessed. Martin v. McReynolds, 6 Mich. 70; Connor v. Jochen, 171 Mich. 69, 137 N. W. 69.
The contempt alleged was not against the dignity of the court granting the decree of divorce, but against the parties in whose behalf the order for alimony and support was made and which the accused is charged with not obeying. In order for Mr. Hobar to disobey, it was necessary to show that he knew, or should have known, of the terms of the decree. Mrs. Hobar did not pray for alimony in the bill she filed for divorce. The summons to Mr. Hobar had no underwriting stating she asked alimony, and the bill was not amended. For this reason, and another we shall presently point out, she was not entitled to alimony. The bill did pray for the custody of the child, but the summons did not so state. Defendant appeared, had a copy of the bill, and he must be held to have had notice that the bill prayed for custody of the child. The underwriting of a summons does not have to state that money is asked for support of a child of the parties, but only that custody of the child is prayed for in the bill.
Infants are, in a sense, wards of the court of...
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