McGill v. McGill

• Decision Date: 24 February 1912
• Citation: 67 Wash. 303,121 P. 469
• Parties: McGILL v. McGILL.
• Court: Washington Supreme Court

121 P. 469

67 Wash. 303

McGILL v. McGILL.

Supreme Court of Washington

February 24, 1912

Department 2. Appeal from Superior Court, King County; A. W. Frater Judge.

Action by Catherine McGill against Henry McGill. From an order requiring defendant to pay delinquent alimony, he appeals. Affirmed.

Herbert E. Snook, for appellant.

Rosenthal & Aaron, for respondent.

ELLIS J.

This is an appeal from an order requiring the defendant to pay delinquent installments of alimony awarded to plaintiff for the support of a minor child, by a decree of divorce, within 10 days, failing which he stand committed to the county jail as for contempt. The defendant appeared specially and moved the court to quash the proceeding upon two grounds.

1. It is urged that the proceeding, being for a contempt, could under Rem. & Bal. Code, § 1054, be prosecuted only in the name of the state. It is a sufficient answer to say that this is not a proceeding for an independent contempt such as contemplated by the statute. The statutory proceeding is in its nature an original criminal proceeding in which the sole subject of inquiry is the contemptuous conduct charged. The proceeding here arose in the exercise of the inherent power of a court of equity to enforce its decrees. It was in aid of the jurisdiction acquired in the original action, which continues so long as there is a minor child whose maintenance was provided for in the decree. The proceeding was therefore properly entitled as in the original action to which it is referable for the court's jurisdiction. This is no longer an open question. Poland v. Poland, 63 Wash. 597, 116 P. 2; Dyer v. Dyer (Wash.) 118 P. 634; Rem. & Bal. Code, § 989.

2. The second contention is that the proceeding should be dismissed because, the plaintiff having remarried, there is now no such person as the plaintiff named. There is no merit in this contention. The cases above cited effectually dispose of it as they do of the first. The motion to quash was properly denied.

3. On the merits the defendant answered that the present husband of the plaintiff had voluntarily assumed the support of the child and stood in loco parentis; that the purpose of the decree was thus met, and the defendant thus absolved from its further observance. The solemn decrees of courts are not to be discharged in any such fortuituous fashion. We cannot recognize charity, however willingly bestowed, as a legal substitute...