People ex rel. Smith v. District Court of Second Judicial District

• Decision Date: 20 May 1895
• Citation: 40 P. 460,21 Colo. 251
• Parties: PEOPLE ex rel. SMITH v. DISTRICT COURT OF SECOND JUDICIAL DISTRICT et al.
• Court: Colorado Supreme Court

40 P. 460

21 Colo. 251

PEOPLE ex rel. SMITH v. DISTRICT COURT OF SECOND JUDICIAL DISTRICT et al.

Supreme Court of Colorado

May 20, 1895

Original proceeding, on the relation of Hugh Smith, for a writ of prohibition to the district court of the Second judicial district, and Peter L. Palmer, district judge. Denied.

In the district court or Arapahoe county, Mary Smith instituted a suit for divorce against the relator, Hugh Smith. After filing the complaint she filed an application for temporary alimony and counsel fees. Due notice of the application was given to the defendant. The parties appeared before the court, a hearing was had, and on the 5th day of February 1895, the court, inter alia, ordered the defendant, who is the relator here, to pay to the plaintiff, for temporary support and maintenance, $60, on or before February 1, 1895 and the sum of $60 per month on the 1st day of each month thereafter during the pendency of the action, and to 'pay to Robert W. Bonynge, on or before the 19th day of February 1895, the sum of two hundred dollars, to be applied on account of his services as counsel for the plaintiff in this action.' The defendant acquiesced in this order, and made the first payment of $60 for plaintiff's support, but failed to comply with the order for the payment of counsel fees, and the second monthly payment upon the alimony. On the 4th day of March, 1895, upon the application of plaintiff the court issued a citation to the defendant to show cause why he should not be punished for contempt for such failure. Hearing upon the citation was fixed for the 7th of March, when the defendant appeared in court, and expressly averred that he had no desire to evade the performance of the order touching the alimony and counsel fees, and stated in writing that he regarded the same as a binding obligation, and was as desirous of performing it as the plaintiff was of having it performed. The defendant asserted that he had made every effort to comply with the order, but, by reason of a series of misfortunes, his efforts proved abortive. Thereupon he asked for further time, solely to give him an opportunity to borrow, upon certain property which he owned, a sufficient sum of money to comply with the rule. Deeming this request for a continuance a reasonable one, the court granted time for further hearing upon such citation until the 25th day of March, following, when the defendant again appeared, and made a further showing to the effect that since the former hearing the plaintiff and the defendant had become reconciled, and were living together as husband and wife, and desired that the said suit be dismissed. Defendant further showed that the plaintiff had released and discharged him from liability in respect to the payment of the alimony and counsel fees provided in said order of the court. It appeared also that the wife had notified her counsel that she, individually, would pay him for his services. Prior to this time, however, the attorney for the wife, having heard an intimation that there was a prospect of this settlement between the parties to the suit, duly served on the clerk of the court and upon the parties a notice to the effect that he would insist upon the payment, of his counsel fees provided for in said order, and objected to the dismissal of said suit, unless and until his fees were paid. The suit was not dismissed, but is still pending in the court, and there is nothing in the record to show any attempt or offer by the plaintiff to withdraw the same, except this statement that she notified her attorney of her desire that it should be dismissed. Upon the final hearing, on March 25th, the court refused to discharge the rule for the payment of counsel fees, but, on the contrary, made it absolute. Thereafter, and on the 5th day of April, the court, speaking by the judge thereof, notified relator, who was then present in court, that if said counsel fees were not paid by 10 o'clock on Monday, the 8th of April, the court would commit relator to jail for contempt of court.upon an application for a writ of prohibition is as to whether the inferior judicial tribunal is exercising a jurisdiction it does not possess, or, having jurisdiction over the subject-matter and the parties, has exceeded its legitimate powers.

Whitford & Lindsley, for plaintiff.

R. W. Bonynge, for defendant.

CAMPBELL J. (after stating the facts).

1. In this state the doctrine is well settled that a writ of prohibition is not a writ of right, but rests in the sound discretion of the court. The only inquiry permitted is as to 'whether the inferior judicial tribunal is exercising a jurisdiction it does not possess, or, having jurisdiction over the subject-matter and the parties, has exceeded its legitimate powers.' Leonard v. Bartels, 4 Colo. 95; People v. District Court of Lake Co., 6 Colo. 534; McInerney v. City of Denver, 17 Colo. 302, 29 P. 516, and cases cited; People v. District Court of El Paso Co., 19 Colo. 343, 35 P 731. The court undoubtedly had jurisdiction over the subject-matter of this suit, as well as of the parties, and had the power to make the award of counsel fees in question. On this application, therefore, the only question for the court to determine is whether the court below exceeded its jurisdiction. The position of relator is that the order, or that part of it providing for the payment of counsel fees directly to the attorney for the plaintiff, was wholly void, because it was a judgment rendered against the defendant in the action, in favor of one not a party to the suit. If this particular judgment is wholly void, then this writ should issue; certainly, unless the relator has some other speedy, ample, and adequate remedy at law, to which he should have resorted. He relies chiefly upon the decision in the case of Sharon v. Sharon, 75 Cal. 1, 16 P. 345. In that case the order granted upon determination of the application for temporary alimony and counsel fees was, in effect, a judgment that the defendant in the action pay to the numerous counsel for the plaintiff certain designated sums of money therein specified. In passing upon this order the court used this language: 'The order here was a direct money judgment in favor of persons not parties to the suit, and to that extent was irregular and void.' It is by placing emphasis upon this last word that counsel for relator chiefly relies. Upon appeal the order in the Sharon Case was reversed, upon the ground, however, that the fees awarded were grossly excessive, although the court did remark that it was irregular and void. In the subsequent case of Storke v....