In re Van Alstine

• Decision Date: 19 May 1899
• Citation: 21 Wash. 194,57 P. 348
• Parties: In re VAN ALSTINE et al.
• Court: Washington Supreme Court

57 P. 348

21 Wash. 194

In re VAN ALSTINE et al.

Supreme Court of Washington

May 19, 1899

Application by Lou Van Alstine and another for habeas corpus, to be discharged from the custody of the sheriff of King county. Granted.

John F Dore and Charles E. Shepard, for petitioners.

Ronald Ballinger & Battle and Richard Winsor, for respondent sheriff.

GORDON C.J.

In November, 1898, Lou Van Alstine, one of the petitioners herein, instituted an action in the superior court of King county for divorce on the ground of cruelty. The defendant in that action, Con Van Alstine, answered, putting in issue the charges of the complaint, and by a cross complaint alleged that the marriage was procured by fraud, in pursuance of a conspiracy between the plaintiff and Emma Norton (the other petitioner in this proceeding), and other persons therein named, for the purpose of entrapping 'some returning Klondiker' and obtaining his money. The cross complaint also charged that, subsequent to the marriage ceremony plaintiff obtained from the defendant certificates of deposit upon a bank in San Francisco, Cal., amounting in the aggregate to $36,000, by leading and inducing the defendant to believe that the certificates were to be safely kept by the plaintiff, and, having obtained the certificates, the plaintiff proceeded to convert the same to the use of herself and her co-conspirators, and fraudulently retained the proceeds of said certificates, with the exception of $5,000, which defendant had obtained prior to the institution of the action. Defendant asked for an annulment of the marriage and a restitution of the money. On the defendant's petition the other alleged conspirators were made parties defendant to his cross complaint, and, with the exception of one Noyes, who was without the jurisdiction, they were served and appeared in the proceedings. Thereafter an order was entered in the lower court requiring the petitioners to show cause why they should not be required to pay into court the money so alleged to have been procured from the defendant. By arrangement between the parties, it appears that hearing on the return of this order was continued, to be taken up with the main case. Subsequently, and prior to the trial, plaintiff filed her motion to dismiss the action, which was resisted by the defendant and denied by the court; and, upon the proofs offered by the defendant at the trial, the court proceeded, on February 27, 1899, to make its findings, conclusions, and decree. The decree is as follows: 'Ordered, considered, adjudged, and decreed that the marriage between the plaintiff, Lou Van Alstine, and the defendant and cross complainant, Con Van Alstine, herein, be, and the same hereby is, annulled, set aside, and held for naught. And it is further ordered and adjudged that the plaintiff, Lou Van Alstine, alias Lou Spear, and the defendant Emma Norton be, and they hereby are, required, directed, and ordered that they, within five days, bring into and deposit in the registry of this court the sum of thirty thousand nine hundred and sixty-five dollars, the proceeds of certain certificates of deposit mentioned in the cross complaint of the cross complainant and in the findings of fact in this action. It is further ordered, considered, adjudged, and decreed that said sum of money so ordered to be deposited as aforesaid be, and the same is hereby, decreed to be the sole property of the said defendant and cross complainant, Con Van Alstine, and is awarded to him as his property, and that, upon being paid into the registry of this court in pursuance of the order herein made, the same shall be paid over to the defendant herein, Con Van Alstine; and it is further ordered, considered, adjudged, and decreed that the said cross complainant recover of and from the said plaintiff and the said Emma Norton, and each of them, the sum of thirty thousand nine hundred and sixty-five dollars, and his costs herein. * * *' The petitioners having failed to comply with the order requiring the payment of the money into court, on March 6, 1899, upon the affidavit of the defendant, an order was made by the court requiring them to show cause why they should not be committed for contempt. In response to this latter order the petitioners made answer, in which they set forth that they had not, nor had either of them, from the time of the commencement of the action for divorce, possession, custody, or control of any of the proceeds of the certificates referred to; that they were unable to produce the same, and wholly unable to comply with the decree of the court in that regard; also, that execution had been issued, and a levy made upon certain personal property of the petitioners, which was and is held by the sheriff for the purpose of selling the same to apply on such judgment and decree. The court thereupon found that it was within the power of the petitioners to comply with the previous order and decree of the court, adjudged that they were in contempt, and ordered that they 'be confined and imprisoned in the county jail of King county, state of Washington, until they shall comply with and have performed the provisions of the decree; * * * that is to say, until they, the said Lou Van Alstine and Emma Norton, shall have brought into and deposited in the registry of this court said sum of thirty thousand nine hundred and sixty-five dollars, the proceeds of said certificates of deposit.' The petitioners thereupon filed in this court a petition praying for a writ of habeas corpus, directed to the sheriff, restoring them to their liberty.

It appears from the record that an appeal has been taken from the original judgment and decree, and is now pending; and in view of this fact, and the importance of some of the questions necessarily involved in the consideration of the appeal, we have considered it wiser to refrain from discussing such questions in...