Larson v. State ex rel. Bennett

• Decision Date: 31 March 1936
• Parties: LARSON, SHERIFF, v. STATE EX REL. BENNETT.
• Court: Wisconsin Supreme Court

221 Wis. 188

266 N.W. 170

LARSON, SHERIFF,

v.STATE EX REL. BENNETT.

Supreme Court of Wisconsin.

March 31, 1936.

Error to review an order of the Circuit Court for Dane County which discharged Cornelia Bennett from the custody of Lawrence O. Larson, sheriff of Dane county; Robert S. Cowie, Judge.

Habeas corpus proceeding by the State, on the relation of Cornelia Bennett, against Lawrence O. Larson, in his capacity as sheriff of Dane county, Wis. To review an order discharging the relator from the custody of the respondent, the respondent brings error.--[By Editorial Staff.]

Reversed and remanded with directions.La Follette, Rogers & Roberts and W. Wade Boardman, all of Madison, for plaintiff in error.

Hall, Baker & Hall, of Madison, for defendant in error.

NELSON, Justice.

Lawrence O. Larson, as sheriff of Dane county, sued out this writ of error to review an order of the circuit court for Dane county (Judge Cowie presiding) which discharged the defendant in error, Cornelia Bennett, from his custody, after hearing had on a writ of habeas corpus, granted by August C. Hoppmann, circuit judge. The facts are not in dispute. On May 24, 1934, a judgment of divorce was duly rendered in the circuit court for Dane county (A. G. Zimmerman, circuit judge presiding) in a certain action in which Martin T. Bennett was plaintiff and Cornelia Bennett was defendant. The custody of the two minor sons of the parties, John and Michael, aged five and three years respectively, were awarded to Mr. Bennett, subject to certain visitation privileges granted to Mrs. Bennett. On August 9, 1934, pursuant to an application made by Mrs. Bennett, her visitation privileges were enlarged so that beginning August 10, 1934, and ending September 9, 1934, she was permitted each day to have the temporary charge and companionship of the sons between the hours of 10 o'clock in the forenoon and 5 o'clock in the afternoon, but with the understanding specifically recited in the order that she should not take the children out of the jurisdiction of the court. She was also expressly told by the court not to take the children beyond its jurisdiction. On August 13, 1934, in violation of said order, Mrs. Bennett took John with her to the state of Michigan where she remained until January 19, 1935. On September 16, 1934, the court entered an order vacating the order of August 9, 1934, which order of September 16, was personally served on Mrs. Bennett in the state of Michigan. Later on in September, Mr. Bennett instituted habeas corpus proceedings in the state of Michigan by which he sought to recover the custody of John. In those proceedings, however, he was not successful. Thereafter, in January, 1935, when Mrs. Bennett voluntarily returned to the state of Wisconsin, a contempt proceeding was instituted against her in the circuit court for Dane county. That proceeding was heard by Judge Hoppmann. After due hearing, the court found the facts substantially as stated, and that the taking of John to the state of Michigan was a deliberate violation of the divorce judgment and of the order of August 9; that her said act constituted a deliberate and willful contempt of court and was calculated to and actually did defeat, impede, and prejudice the rights and remedies of the plaintiff in the matter of the custody of John; that by reason of said contempt and in order to vindicate his rights, regain the custody of John, and return him to the jurisdiction of the court, Mr. Bennett actually incurred expenses and costs in the sum of $871.70; and that $100 was a reasonable sum to be allowed Mr. Bennett as and for attorney's fees in prosecuting the contempt proceedings. Upon the facts so found, the court concluded that Mrs. Bennett was guilty of deliberate and willful contempt of court; that said contempt was calculated to and actually did defeat, impede, and prejudice the legal rights and legal remedies of Mr. Bennett; that Mrs. Bennett should indemnify Mr. Bennett in the sum of $971.70; that Mrs. Bennett should be given sixty days from the date of entry of the contempt order in which to pay said sum; and that in case of her failure so to do, she be committed to the county jail for Dane county for a period of three months. The $100 attorney's fees were duly tendered. On May 24, 1935, Mrs. Bennett not having paid $871.70, the court entered an order directing the clerk of the court to issue a commitment. That was done and Mrs. Bennett was committed to the county jail of Dane county for a term of three months commencing May 24, 1935. There upon Mrs. Bennett applied to Judge Hoppmann for a writ of habeas corpus. The writ, directed to Lawrence O. Larson, sheriff of Dane county, was granted. In the sheriff's return it was recited that Mrs. Bennett was in his custody by virtue of the commitment theretofore issued. Mrs. Bennett's attorney suggested that since a review of the order of the court awarding indemnity to Mr. Bennett was sought in the habeas corpus proceedings, the court might be willing to have the matter heard by some judge who had not already heard the question of law involved. He therefore moved that the matter be transferred to some other circuit judge. The court thereupon called in Judge Cowie to hear the matter at such time as should be agreed upon. Thereafter Judge Cowie came to Madison and presided at the habeas corpus hearing. The court held, basing its decision largely upon In re Ida Louisa Pierce, 44 Wis. 411, that the court (Judge Hoppmann presiding) exceeded its jurisdiction in ordering Mrs. Bennett to indemnify Mr. Bennett in the sum of $871.70, the amount of his costs and expenses, and accordingly ordered that she be discharged from the custody of the sheriff. Thereafter the plaintiff in error sued out this writ to review that order.

The principal question argued is whether the circuit court, hereafter called Judge Cowie, erred in holding that the circuit court, hereafter called Judge Hoppmann, acted without jurisdiction in ordering Mrs. Bennett to pay to Mr. Bennett the sum of $871.70 to indemnify him for the costs and expenses incurred by him in attempting to recover the custody of John and to bring him within the jurisdiction of the circuit court for Dane county, and in committing her to the county jail of Dane county upon her failure to pay said indemnity. The statutes, pursuant to which Judge Hoppmann acted, are sections 295.13 and 295.14.

Mrs. Bennett contends that Judge Hoppmann was without jurisdiction to order her to pay an indemnity to Mr. Bennett because the expenditures made by him did not constitute “an actual loss or injury” produced by her misconduct, as that language was construed by this court in Re Ida Louisa Pierce, supra. In that case it was said:

“It is very clear that the ‘loss or injury’ of the statute is a pecuniary loss, or injury to rights...