Robertson v. State

• Decision Date: 16 December 1924
• Docket Number: 6 Div. 643
• Citation: 20 Ala.App. 514,104 So. 561
• Parties: ROBERTSON v. STATE.
• Court: Alabama Court of Appeals

104 So. 561

20 Ala.App. 514

ROBERTSON v. STATE.

6 Div. 643

Court of Appeals of Alabama

December 16, 1924

Rehearing Denied March 17, 1925

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Petition of Edwin A. Robertson for writ of habeas corpus. From a judgment denying the writ, petitioner appeals and brings an original petition for the writ. Writ granted, petitioner discharged, judgment reversed, and cause remanded.

Horace C. Wilkinson and C.W. Greer, both of Birmingham, for petitioner.

Black &amp Harris, of Birmingham, for the State.

BRICKEN P.J.

At the time of the submission in this court of this cause, the points of decision involved were fully and ably argued by counsel for petitioner and for complainant. These questions have been elaborately briefed by counsel for petitioner, but no brief has been filed, contra. We deem it proper to first make a full statement of the case as shown by the record.

Mrs Robertson, who will be hereafter referred to as the complainant, filed a bill on the equity side of the circuit court of Jefferson county, Ala., seeking an allowance for maintenance and support from her husband, Edwin A. Robertson who will be referred to as the petitioner. The respondent filed an answer, and a cross-bill praying for a divorce on a statutory ground.

On July 15, 1924, the circuit judge, sitting in equity, entered a decree dismissing the cross-bill out of court "without prejudice," and granting the complainant relief as prayed for in her bill of complaint as follows:

"That the said Edwin A. Robertson, the respondent and cross-complainant, be and he is hereby ordered to pay over to the said Mrs. Edwin A. Robertson the sum of $680 as maintenance pendente lite from December, 1923, to the date hereof, and beginning on the 1st day of August, 1924, and on the 1st day of each month thereafter, the sum of $85 for her support and maintenance.

"Second. In addition to the above, the said Edwin A. Robertson be and he is hereby ordered and required to pay into the registry of this court, as a part of the costs in this cause, the sum of $500 for the use and benefit of the solicitors of record for the complainant."

On the 26th day of September, 1924, complainant presented a petition to the circuit judge who rendered the decree, praying that the petitioner here be ordered to appear and show cause why he should not be imprisoned for a contempt of the court because of an alleged refusal on his part to make the payments specified in the decree. The affidavit annexed to the petition is set out in full further on in the opinion.

On the same day the circuit judge ordered the petitioner here to appear on a day designated, to show cause, "If any he has, why he should not be adjudged in and punished for contempt of this court," following which the register issued a rule nisi that was duly served on petitioner, commanding him to appear and show cause as directed in the order above referred to.

Petitioner appeared on the designated day, and, by motion, sought to have the court vacate and set aside its order commanding the petitioner to appear and show cause why he should not be adjudged in contempt, and to quash the rule nisi, on the ground, to state it generally, that the jurisdiction of the court had never been invoked, because, as was stated in the motion, the affidavit accompanying the petition is wholly insufficient to support the citation, directed to the respondent, commanding him to appear and show cause why he should not be adjudged in contempt of the court.

The motion being overruled, other motions not necessary to be here noticed were made, and, upon each of them being overruled, petitioner answered under oath. The first paragraph of petitioner's answer is as follows:

"(1) That he should not be adjudged for and as in contempt of this honorable court because he is not in contempt of court; that he had at all times had the highest respect for this honorable court and its decrees, and has endeavored in good faith to abide by and perform any and all decrees of this honorable court that in any wise affect this respondent, and will continue to do so, and is ready and willing to abide by any decree of this court to the extent of this respondent's ability."

Then follows a detailed statement of petitioner's financial condition at the time of the rendition of the decree, with an explanation of his sources of income, and events that occurred subsequent to the rendition of the decree, that will be more fully referred to during the course of this opinion. In his answer petitioner admitted that he had failed to comply with the decree:

"But he respectfully shows unto the court that he was and is wholly without means to pay said decree; that he did not have at the time the decree was rendered, nor since said time, any money or means with which to satisfy said decree, and that he had no money or property that he could handle with which to do so, and has had none since said decree was rendered; that he had no means of paying same without borrowing money, and that his property was in such condition, as will be hereinafter explained, that it was impossible to raise money on the same for the purpose of paying said decree."

The evidence was heard orally. But one witness was examined, the petitioner himself. The ledger sheets of his two bank accounts and his check stubs were introduced by complainant as exhibits to his testimony, and appear in the record. After argument of counsel, the circuit judge adjudged petitioner in contempt of court; omitting the preliminary recitals, the decree was as follows:

It is therefor ordered, adjudged, and decreed by the court that the respondent, Edwin A. Robertson, be and he is hereby held and decreed to be guilty of contempt of this court, by willfully failing and refusing and declining to comply with the decree of this court rendered July 15, 1924, as above set forth, and the said Edwin A. Robertson is hereby ordered committed to the county jail of Jefferson county, Ala., for five days, unless the said Edwin A. Robertson purges himself of said contempt by paying said sums as hereinabove set out into the registry of this court, and the sheriff of Jefferson county, Ala., is hereby ordered and directed to commit the said Edwin A. Robertson in accordance with this decree, and should the said respondent fail to purge himself of said contempt by paying said sums, the said sheriff of Jefferson county is ordered to again produce the body of the said Edwin A. Robertson before this court at the expiration of the said five days' commitment.

"Done and ordered this the 4th day of October, 1924.

Wm. M. Walker, "Circuit Judge in Equity."

Petitioner immediately presented a petition for a writ of habeas corpus to Hon. John Denson, another one of the judges of the circuit court of Jefferson county, Ala., who declined to issue the writ, and indorsed on the petition the following order:

"The foregoing petition being presented to the undersigned judge of the circuit court of Jefferson county, Ala., on consideration of the same, I am of the opinion that the petitioner is not entitled to the benefit of the writ, and that I have no jurisdiction to issue it.

"It is therefore ordered, adjudged, and decreed that the petition for writ of habeas corpus be and it is hereby denied, and petitioner excepts.

"This 4th day of October, 1924.

"John Denson, Circuit Judge."

Petitioner appealed from this order, and filed the transcript of the record in this court the same day; petitioner subsequently presented a petition to this court for a writ of habeas corpus, with a prayer for bail pending a hearing on the petition and the appeal. This court ordered the writ to issue and petitioner admitted to bail pending a hearing.

A properly certified transcript of the contempt proceedings in the court below is made a part of the sheriff's return, and that officer answers that, by virtue of these proceedings and no other, this petitioner was being restrained of his liberty. The petitioner here seeks to be discharged (1) because it is claimed the affidavit annexed to the petition for the rule nisi was insufficient to invoke the jurisdiction of the court below; (2) because it is claimed all the evidence showed no contempt had been committed.

The complainant resists the discharge (1) because it is claimed the court below had authority to cite and punish petitioner for contempt without any verified pleading being filed in the first instance; (2) because it is claimed the affidavit is sufficient--at most "irregular"; (3) because it is claimed that this court is without jurisdiction to review the court below.

We will dispose of the question of this court's authority or jurisdiction first, although the question of jurisdiction is only alluded to in argument, and not raised by any formal pleading.

A contempt proceeding raises an issue outside of the pending cause. While in some cases, it may, in a sense, be collateral to the main cause, it is not a part of that cause. It is a separate, independent proceeding, governed by well-established rules of procedure, and has no proper place in the record of the main cause. Alabama Power Co. v. Adams et al., 191 Ala. 54, 67 So. 838; Board of Revenue of Covington County v. Merrill, 193 Ala. 521, 542, 68 So. 971. It is in the nature of a special proceeding, collateral to but independent of the cause in which the contempt arises and of a criminal nature. 7 Words and Phrases, p. 6588; 13 C.J. p. 7.

In Ex parte Hardy, 68 Ala. 315, the Supreme Court of this state said:

"It is often said that contempts of court are in the nature of a 'special criminal offense,' and the proceedings for their punishment are in the nature of a criminal procedure. In re Williamson, 26 Pa. 9, 67

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