Loy v. Loy

• Decision Date: 15 March 1949
• Parties: LOY v. LOY.
• Court: Tennessee Court of Appeals

222 S.W.2d 873

32 Tenn.App. 470

LOY v. LOY.

Court of Appeals of Tennessee, Western and Middle Sections, at Knoxville.

March 15, 1949

Certiorari Denied by Supreme Court July 9, 1949.

Beulah M. Loy sued Sheridon O. Loy for divorce. An ancillary proceeding was instituted by scire facias against the sureties on an appearance bond of the defendant to answer for contempt of court in not paying sums required by decree of divorce.

The Juvenile and Domestic Relations Court, Knox County, Hu. B Webster, J., entered a decree against the sureties, and they appealed.

The Court of Appeals, Felts, J., reversed and dismissed the proceeding, reviewed the power of the courts to punish contempts and held that the bond was void because taken without authority of law, and therefore did not bind the principal or the sureties.

Cates, Fowler, Long & Fowler, Knoxville, W. W Piper, Knoxville, for appellants.

Geo. S Child, Knoxville, for defendant.

FELTS Judge.

This was a divorce suit in the Juvenile and Domestic Relations Court of Knox County. The branch of it now before us is an ancillary proceeding by scire facias against the sureties on an appearance bond of defendant to answer for contempt of that court in not paying the sums required by its decree of divorce. The court decreed that the sureties shall pay complainant the amount of the bond.

They appealed from that decree and have assigned a number of errors through which they insist that this bond was taken without authority of law and was a nullity and that even if it was originally valid the court entered certain decrees which had the effect of discharging it. These issues require a statement of the steps in the divorce suit which led to the giving of this bond and those which are relied on as discharging it.

The parties lived in Knox County and the husband was employed at Oak Ridge. She commenced that suit by having him arrested on a writ of ne exeat. He made a ne exeat bond and filed an answer and cross-bill for divorce for cruel and inhuman treatment. Her bill had been upon the same ground and had asked a divorce from bed and board. She now amended so as to seek an absolute divorce and support for herself and their two children.

On December 29, 1945, the court entered a final decree granting her a divorce, ratifying a property settlement between them, giving her custody of the children, and ordering him to pay $25.00 a week for support of the children. This decree continued the ne exeat in force, dismissed a petition she had brought against him for contempt, awarded her a judgment for a pendente lite arrearage of $277.00, and provided, 'for the collection of which execution may issue, or citation for contempt may be continued.'

Complainant filed another petition for contempt March 7, 1946. It averred that he was in arrears in the sum of $357.00 alimony and $150.00 attorney's fees, or a total of $507.00, and prayed for an attachment for contempt. The judge granted a fiat ordering the clerk to issue an attachment, returnable March 19, 1946, and stating that the sheriff might take an appearance bond in the penalty of $500.00. The sheriff arrested defendant March 21, and took his bond to appear April 30, 1946.

He appeared that day and was tried on the charge of contempt. The court's decree recites that the case was heard upon her petition, his plea of guilty, and the evidence. The court found he was in arrears in the sum of $687.00, adjudged him guilty of contempt, and committed him to jail 'until he complies with the orders of the Court, in payment of the alimony and support, or shows a disposition to pay.'

On the same day, April 30, 1946, the court entered another decree reciting that I. M. Loy and A. H. Loy, who had signed as sureties on the ne exeat bond, applied to be relieved as such sureties, and that defendant being brought in court and surrendered by said bondsmen, 'it is the order of the Court that said bondsmen be relieved of further obligations on said bond.' The decree also stated that 'defendant will remain in jail until said arrangement is made for said bond.'

It appears that pursuant to the court's decree adjudging defendant guilty of contempt and committing him to jail, he was committed April 30 and remained in jail presumably till May 18, 1946. There was no order or decree of the court releasing him or authorizing the taking of any bond for his release. But the record contains a copy of an appearance bond dated on its back May 18, 1946, which was not filed or approved but which appears to have been found among the papers in the case. It was a printed form filled out as follows:

'The State of Tennessee, Knox County

We Sheridon O. Loy Principal and Hobart Loy and G. E. Loy sureties, agree to pay to the State of Tennessee ($500.) Five hundred and no/100 Dollars, unless the said Sherridon O. Loy appear on the 18th day of June 1946, before Juvenile and Domestic Relations Court for said County, and from day to day thereafter, until discharged by law to answer a criminal prosecution for the offense of contempt of court and we hereby waive the benefit of all laws exempting property from levy and sale under execution or other process for the collection of debt, by the Constitution and Laws of the State of Tennessee, and we hereby severally certify that we have property over and above all debts and liabilities to the full amount of the above bond.

'Approved this ___ day of 194_

________ Sheriff

By ________ Deputy Sheriff

(S) Hobart Loy, Fountain City, Rt. #13 L. S.

(S) G. E. Loy 'L. S.

Principal*(S) S. O. Loy, 'L. S.' It seems that defendant was released from jail on this bond. On June 1, 1946, the court entered an order undertaking to continue the ne exeat in force but at the same time permitting defendant to go to Atlanta, Georgia, to take employment 'to enable him to comply with the orders of this Court.' This order also referred to the appearance bond and stated that the appearance date was continued and passed until July 1, 1946, at 9:00 A.M. It also stated that it was a consent order, and it was signed by the attorney for complainant and an attorney for defendant and his bondsmen.

There was no order on this appearance date, July 1, 1946, but on August 8 there was an order stating that by consent of the parties the hearing was passed till September 3, 1946, and that the defendant would remain under his present bond. There appears no other order fixing any appearance date.

On October 5, 1946, defendant filed a petition to reduce the amounts he was required to pay by the former decree of the court. He stated that he was employed by the Suburban Bus Lines, Atlanta, Georgia, earned $26.00 per week, and was unable to pay the $25.00 per week required by that decree. He also asked the court to modify that decree as to his right to see and be with the children.

Complainant moved to dismiss his petition on the ground that he was still in contempt of court and could not be heard. Coupled with this motion, she filed a lengthy answer in which she denied his right to any relief and which need not be detailed.

There was a hearing on November 21, 1946, and the court modified the former decree by reducing the weekly payments to $20.00 per week and by fixing the terms on which defendant might see his children at the home of complainant or at the home of his parents. This decree ordered him to pay $50.00 attorney's fee to complainant's attorney for his services in behalf of the children. It also stated that defendant would 'continue under his present appearance bond, or a substitute bond, in the same penalty, for appearance in Court, at the orders of the Court, thereby permitting said defendant to seek employment without the State, as heretofore provided for.'

Complainant brought another contempt proceeding April 15, 1947. She filed what was styled a 'Motion and Order for Defendant's Appearance and/or Forfeiture of Bond,' but it was in fact a petition for a new contempt. That is, a contempt under the second or modified decree of November 21, 1946, fixing defendant's payments at $20.00 per week. It referred to that decree and alleged that defendant had failed to comply with it and was in contempt. It prayed that the court order him to appear for judgment and that the clerk notify him and his sureties that on his failure to appear the bond would be forfeited.

The judge granted a fiat directing the clerk to issue an order for defendant to appear May 1, 1947, and to 'notify the sureties on his prosecution bond to have said defendant in court, or suffer forfeiture in the penalty of said bond.' A summons was issued and appears to have been served on defendant, commanding him to appear on the '3rd Monday of April next' 'to show cause why he is not in contempt of this Court.'

On May 6, 1947, an order was entered stating that by consent of the parties the date for defendant to appear was 'passed to a date to be fixed by agreement of the parties, or set by the Court, on application therefor.' Another order was entered August 21, 1947, stating that defendant's sureties were directed to have him present in court at 9:00 A.M. August 28. On September 2 there was another order stating that the appearance date was set for September 6, 1947.

On December 4, 1947, a final judgment was entered against defendant and the sureties on the appearance bond for $500.00, the amount of the bond. This judgment recited that a forfeiture had been taken and a scire facias had issued which was not true in point of fact; and it awarded execution. On February 14, 1948, another judgment of forfeiture of the bond was entered, directing the clerk to issue scire facias to the sureties to appear and show cause why the judgment should not be made final. This judgment was...