In re Popejoy

• Decision Date: 16 January 1899
• Citation: 26 Colo. 32,55 P. 1083
• Parties: In re POPEJOY.
• Court: Colorado Supreme Court

55 P. 1083

26 Colo. 32

In re POPEJOY.

Supreme Court of Colorado

January 16, 1899

Leslie W. Popejoy was committed for contempt for failure to pay a judgment against him for his wife's separate maintenance and he petitions for habeas corpus. Dismissed.

T. C. Early, for petitioner.

W. D Reid and J. H. Gabriel, for respondent.

GABBERT J.

In the original case of Annie B. Popejoy against the petitioner, the plaintiff in that action, as his wife, sought and recovered a money judgment against him for separate maintenance, in the district court of Arapahoe county. Petitioner, having failed to pay this judgment, was subsequently cited to appear before the court rendering it, and show cause why he had not paid it. On the hearing had under this latter proceeding, the court directed that, within a specified time, he pay into its registry, for the use of plaintiff, the amount due on the original judgment, and that, on failure to do so, he be committed to the county jail of Arapahoe county until such time as he should, or until the further order of the court in the premises. Having failed to comply with this order, the court issued an attachment or warrant of commitment directing the sheriff of Arapahoe county to arrest petitioner, and confine him in jail, in accordance with such order. This writ was served in the county of El Paso, by the sheriff of Arapahoe county. Petitioner applied to this court for a writ of habeas corpus, and in his petition sets forth the facts above mentioned, and, in addition, states that, at the hearing had on the return of the citation the evidence then taken established that he was without means to pay the judgment, and attaches to his petition what purports to be a transcript of the testimony introduced at that hearing, and avers that, at the time of his arrest under the warrant of commitment by virtue of which he is now restrained of his liberty, he was under bond to appear before a justice of the peace in El Paso county; that for this reason he protested against his arrest by the sheriff of Arapahoe county, but was forcibly seized and taken in custody by one of the duly-authorized deputies of such sheriff. The writ of habeas corpus having issued, the sheriff, for return, sets out the proceedings has in the case of Popejoy against Popejoy, and under these justifies his restraint and imprisonment of the petitioner. The propositions advanced by counsel for petitioner are: First, that the district court had no jurisdiction to try and determine the cause of Popejoy against Popejoy; second, that, if it has jurisdiction to try and determine that cause, it exceeded it by ordering the petitioner committed to prison if he failed to pay the amount named in the order entered on the proceedings had under the citation; third, that, being under bond to appear before a justice of the peace in El Paso county to answer a criminal charge, he could not be arrested under warrant issued by the district court of Arapahoe county; fourth, the sheriff of the latter county had no authority to serve the warrant under which he is now imprisoned; and, fifth, this warrant is irregular and insufficient, for the reason that it does not appear therein, nor in the order under which it was issued, that he had willfully disobeyed the order of the court with regard to the payment of the money adjudged due the plaintiff in the original action, or that it was within his power to obey that order.

1. In support of the suggestion of counsel for petitioner, that the district court was without jurisdiction to enter the original judgment, he contends that an action for separate maintenance alone cannot be maintained by the wife against the husband. Conceding, but not deciding, that this question can be raised in this proceeding in the manner attempted, it has been settled by the decisions of this court and the court of appeals that such an action may be maintained, and that the wife, in a proper case, is entitled to a judgment for separate maintenance, independent of an action for divorce (Daniels v. Daniels, 9 Colo. 133, 10 P. 657; Dye v. Dye, 9 Colo.App. 320, 48 P. 313; Hanscom v. Hanscom, 6 Colo.App. 97, 39 P. 885); and, although the doctrine announced by the courts of this state on this subject is in conflict with decisions on the same question in some of the other states, it is fully supported by the decisions in those which have adopted the view entertained by the appellate courts in this (Bish. Mar., Div. & Sep. §§ 1398, 1399; Galland v. Galland, 38 Cal. 265; Van Arsdalen v. Van Arsdalen, 30 N.J.Eq. 359; Garland v. Garland, 50 Miss. 694; Verner v. Verner, 62 Miss. 260; Almond v. Almond, 4 Rand. [Va.] 662; Platner v. Platner, 66 Iowa 378, 23 N.W. 764). The broad ground upon which these authorities rest is that it is the duty of the husband to support the wife, and if, without fault upon her part, he refuses to do so, the courts will compel him to render her a reasonable support, in accordance with his means, even though the wife does not seek or wish a legal separation, dissolving the bonds of matrimony, and that an action for this purpose may be maintained because of the inadequacy of ordinary legal remedies to enforce this duty. Garland v. Garland, supra. Again, the policy of the courts is to discourage, rather than encourage, divorces. The wife may be entitled to a divorce, but whether or not she will exercise that right is optional with her, and to hold that, unless she did, she could not maintain an action for support, would be both unreasonable and unjust, for, although the conduct of the husband may be such that she could dissolve the marriage contract, he is not relieved from his duty of supporting her because she does not wish to pursue that course; and, besides, a case might arise where the husband withheld support, but not for a sufficient length of time to entitle the wife to a divorce upon that ground, and in the interim she would be without an adequate remedy, unless permitted to maintain an action for separate maintenance.

2. On the second proposition advanced by ...