Leeder v. State

• Decision Date: 19 May 1898
• Docket Number: 9818
• Citation: 75 N.W. 541,55 Neb. 133
• Parties: EDWARD LEEDER v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

75 N.W. 541

55 Neb. 133

EDWARD LEEDER v. STATE OF NEBRASKA

No. 9818

Supreme Court of Nebraska

May 19, 1898

ERROR from the district court of Douglas county. Tried below before SCOTT, J. Reversed.

Order reversed and proceedings dismissed.

W. S Shoemaker, for plaintiff in error.

C. J Smyth, Attorney General, and Ed P. Smith, Deputy Attorney General, contra.

OPINION

NORVAL, J.

This is a proceeding in error to review an order convicting Edward Leeder of contempt of court. On August 4, 1888, in a cause then pending in the district court of Douglas county, in which Catherine Leeder was plaintiff and the said Edward Leeder was defendant, a decree of divorce was obtained by the plaintiff therein and she was awarded the sum of $ 500 permanent alimony. On the 25th day of the same month an execution was issued for the collection of said amount, which writ was returned, "No property found." No other execution has ever been issued in said cause, nor has the decree for alimony ever been revived. On January 3, 1898 Judge Scott, one of the judges of the district court of Douglas county, without any motion or application therefor having been made in writing, issued an order against Edward Leeder, requiring him to show cause, on the morning of January 5, why he had not complied with the decree of the court regarding the payment of alimony. On January 6 the following order of attachment was issued by Judge Scott:

"CATHERINE LEEDER, Plaintiff, v. EDWARD LEEDER, Defendant.

Order.

"An order having been made by this court on the 3d day of January, 1898, requiring the said Edward Leeder to appear on the morning of the 4th instant and show cause why he has not complied with the order of court heretofore made in this case, that he, the said Edward Leeder, should pay to the said Catherine Leeder, as alimony, the sum of $ 500, which said order was made by this court at the May term of 1888; that in pursuance of said order of citation said Edward Leeder did appear on the morning of the 5th instant and did then and there inform the court that he would have $ 100 to pay to the plaintiff Catherine Leeder by 10 o'clock on the morning of the 6th instant, and that upon the strength of such promise on the part of Edward Leeder he was allowed to depart with the distinct admonition on the part of the court that he be present with the said $ 100 by 10 o'clock on the 6th instant; said Edward Leeder has utterly and wholly refused and neglected to pay into court or to the said Catherine Leeder, the said sum of $ 100 as he agreed to do, as a condition on which he was permitted to depart, as above stated, on the 5th day of January, 1898. It is therefore ordered that an attachment do issue against the said Edward Leeder and that he be brought into court to answer as for contempt in not complying with the order of the court.

"Omaha, January 6, 1898.

"By the court: CUNNINGHAM R. SCOTT, Judge."

The defendant appeared and filed an answer setting up that he is without means or money with which to pay said alimony; that he has no personal property save and except his wearing apparel and household furniture, worth not to exceed $ 300; that he is a married man and the head of a family, and has neither town lots, lands, nor houses within this state. On January 7, 1898, the following order was entered by the court below adjudging Edward Leeder to be guilty of contempt:

"THE STATE OF NEBRASKA v. EDWARD LEEDER.

Order of Commitment.

"The defendant having been cited on the 3d inst. to appear before this court on the 5th instant to show cause why he has not complied with the order of this court in the case of Catherine Leeder v. Edward Leeder at the May term of this court, 1888, to pay the said Catherine Leeder the sum of $ 500 alimony, and showing no good reason therefor, and agreeing then in open court to bring into court on the morning of the 6th day of January 1898, $ 100 of said alimony for the use of the said Catherine Leeder, as ordered by ...