Herzog v. Bramel, District Judge,
| Decision Date | 27 June 1933 |
| Docket Number | 5335 |
| Citation | 82 Utah 216,23 P.2d 345 |
| Court | Utah Supreme Court |
| Parties | HERZOG v. BRAMEL, District Judge, et al |
Proceedings by Nellie Herzog, formerly Nellie Purrington, for writ of mandate to be directed to William H. Bramel, as Judge of the Third Judicial District Court, and another.
Alternative writ of mandate made permanent, with directions.
Wm. L Beezley, of Salt Lake City, for plaintiff.
Brady & Acheson, of Salt Lake City, for defendants.
This is an application for a writ of mandate to compel the district court to reinstate, hear, and determine a proceeding on petition of Nellie Herzog, formerly Purrington, against J. F. Purrington, her former husband, filed in the district court requiring the defendant to show cause why he should not be punished for contempt for alleged failure to pay alimony as decreed by the court in the divorce action. In the petition filed in the district court May, 1932, it was alleged and admitted that the decree of divorce was granted November 14, 1930, in favor of the plaintiff, Nellie Purrington, and against her then husband, J. F. Purrington, and that an award of alimony was granted her of $ 10 a month dated from June 18, 1930, when the complaint in the divorce action was filed, $ 50 attorney's fees, and costs. The award of alimony, attorney's fees, and costs were by the parties agreed to in settlement prior to the entry of the decree. Whether the court in awarding alimony and attorney's fees did or did not follow the settlement is not made to appear nor here involved. In the petition filed in the district court, all jurisdictional facts were alleged and admitted leading up to the granting and entry of the decree. Among other things, it also was alleged that the amount of accrued alimony was $ 230, of which the defendant had paid only the sum of $ 75, that there remained due and unpaid the sum of $ 155, and $ 27.50 attorney's fees and $ 10 costs.
It, however, was further alleged in the petition that, after the divorce decree was entered, and on or about December 15, 1930, the defendant and his counsel, with intent to cheat, deceive, and defraud the plaintiff, and without the knowledge or consent of her counsel, fraudulently induced her to sign "a certain paper for a purported settlement," and falsely and fraudulently represented to her that, if she "would settle her alimony award for $ 100," the defendant would pay her such sum within one week and $ 50 attorney's fees and $ 10 costs, and a further sum of $ 14.70 costs remaining unpaid in a prior maintenance action; that such promises and representations were false and were made with no intent to comply therewith, but to cheat and deceive the plaintiff; that she, believing the promises and representations to be true, and relying thereon, and in the absence of her attorney, and because of the fraud practiced on her, signed the paper without reading or understanding it; and that thus the alleged contract or settlement had no legal effect and in no particular had been complied with or carried out. While it was not expressly alleged that the paper was signed without consideration, yet sufficient facts are set forth to show that not anything, except the alleged false and fraudulent promises, were received by the plaintiff. It further was alleged that demands were made for payment of the alimony, attorney's fees, and costs as awarded by the decree, and that the defendant, although able to pay the same, willfully refused to do so.
Upon the filing of the petition, a citation was issued to the defendant to show cause why he had not complied with the decree, and had not paid the alimony and why he should not be punished for contempt for his failure and refusal to do so. In response thereto, the defendant by his counsel appeared and specially demurred to the petition on the ground that on the face of the petition it appeared that subsequent to the entry of the decree the parties had entered into a contract or settlement with respect thereto, and though it was alleged that the contract or settlement was induced by fraud and misrepresentation, and was fraudulently entered into to deceive the plaintiff, yet it was urged that the district court in the proceeding invoked by the petition was without jurisdiction to hear and determine it, and that a separate and independent action in equity was essential to first determine the alleged invalidity of the contract or settlement, and, until it was so determined and decreed, the district court was without jurisdiction to entertain the proceedings to enforce the decree. The district court, after argument of counsel, adopted such view, and on June 10, 1932, by a written order recited and ordered that, the decree of divorce having been made and entered November 30, 1930, and subsequent thereto and on December 15, 1930, "a contract was made between the plaintiff and the defendant concerning alimony and payment of attorney's fees, which contract the plaintiff now alleges to be void and induced by fraud and misrepresentation; and, whereas, the court is of the opinion that such decree of divorce became final more than one year ago and cannot now be changed by this court, and it is also of the opinion that this court has no jurisdiction to annul or change said contract in this summary proceeding or in any manner, except in a plenary action duly commenced for that purpose, and therefore this court dismisses said petition of the plaintiff and refuses to proceed any further therewith."
It thus is seen that the court, for the reasons stated, ruled that it was without jurisdiction to entertain the petition or grant any relief thereunder, and hence refused to consider the petition on merits or to grant any relief thereunder, and dismissed it and refused to further proceed. In no particular, except for want of jurisdiction, was the petition challenged; nor was it considered or dismissed on any other ground. And so the plaintiff applied for a writ to require the court to reinstate the petition and to proceed with the cause.
The right to the writ is here challenged by the defendant on the same ground and no other on which jurisdiction was challenged in the court below. While the defendant urges that mandamus does not lie, yet that is put on the ground, not that the plaintiff has another adequate remedy at law in the same cause or action by appeal or otherwise, but on the ground that the plaintiff has a remedy by commencing an independent action in equity to annul the contract or settlement on the ground of fraud and misrepresentation, the same ground urged in the court below challenging the jurisdiction of the court to entertain the petition or to grant any relief under it. If, therefore, the court below correctly ruled that it was without jurisdiction to entertain the petition, the writ here applied for should be denied. On the contrary, if the court erroneously held that it was without jurisdiction, and for that reason refused to entertain the petition and dismissed it, the writ should be granted.
When an inferior court or tribunal, having jurisdiction erroneously rules it is without jurisdiction, and for such reason refuses to hear or proceed with a...
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