Simmons v. Simmons

• Decision Date: 29 March 1938
• Docket Number: 8127.
• Citation: 278 N.W. 537,66 S.D. 76
• Parties: SIMMONS v. SIMMONS.
• Court: South Dakota Supreme Court

278 N.W. 537

66 S.D. 76

SIMMONS v. SIMMONS.

No. 8127.

Supreme Court of South Dakota

March 29, 1938

Appeal from Circuit Court, Minnehaha County; L. L. Fleeger, Judge.

Suit for divorce by Jessie K. Simmons against Everett L. Simmons wherein a modified decree of divorce was granted. From an order finding defendant to be in contempt of court for failure to pay alimony in accordance with provisions of decree, defendant appeals.

Reversed.

Parliman & Parliman, of Sioux Falls, for appellant.

Everett A. Bogue, of Parker, for respondent.

RUDOLPH Judge.

This is an appeal from the judgment of the circuit court of Minnehaha county, wherein the defendant is held to be in contempt of court for the failure to pay alimony to the plaintiff under the provisions of a certain modified decree of divorce. The contempt proceeding was brought on by an order to show cause which was supported by affidavits. The defendant submitted affidavits in answer to those of the plaintiff. At the hearing on the order to show cause counsel for the defendant requested that he be permitted to have the defendant sworn and testify before the court. He further requested that the plaintiff, who was present at the hearing, be sworn and submit to cross-examination. The trial court denied both requests and proceeded to determine the issues involved upon the affidavits submitted.

The contempt of court here involved is a "civil" as distinguished from a "criminal contempt." State v. American News Co., 62 S.D. 456, 253 N.W. 492, 493. This court has since an early date entertained appeals in this class of contempt cases. Hoffman v. Hoffman, 26 S.D. 34, 127 N.W. 478, 30 L.R.A.,N.S., 564, Ann. Cas.1913A 956; Krueger v. Krueger, 32 S.D. 470, 143 N.W. 368; Fritz v. Fritz, 45 S.D. 392, 187 N.W. 719; Gockowski v. Gockowski, 47 S.D. 640, 201 N.W. 554; Revell v. Revell, 59 S.D. 629, 241 N.W. 746. In view of this previous practice we believe this appeal should be allowed. While no appeal in this class of cases was permitted at common law, "the right of appeal [in this country] * * * has been gradually extended by statute or judicial construction until now, generally, a judgment in contempt can be reviewed either by an appeal or on writ of error." State v. American News Co., supra; 6 R.C.L. 538, 539; section 51, 3 R.C.L. (Perm. Sup.) page 1758.

A contempt proceeding is sui generis. Freeman v. City of Huron, 8 S.D. 435, 66 N.W. 928. As stated by the United States Supreme Court in the case of Bessette v. W. B Conkey Co., 194 U.S. 324, 24 S.Ct. 665, 666, 48 L.Ed. 997:

"It is criminal in its nature, in that the party is charged with doing something forbidden, and, if found guilty, is punished. Yet it may be resorted to in civil as well as criminal actions, and also independently of any civil or criminal action. * * *

"The purpose of contempt proceedings is to uphold the power of the court, and also to secure to suitors therein the rights by it awarded."

In this state under the established practice it is held that a contempt proceeding may be brought on by an order to show cause, yet it is necessary that the court make findings of fact showing as a matter of law that the party accused is in fact guilty of contempt. Hoffman v. Hoffman, supra; Krueger v. Krueger, supra; Gockowski v. Gockowski, supra. It would appear therefore that the final adjudication results in a judgment as distinguished from an order, and in this respect the procedure itself is sui generis, at least so far as the practice in this state is concerned. See Badger State Bank v. Weiss, 60 S.D. 484, 245 N.W. 41.

Whether the contempt be civil or criminal, the final result so far as the defendant is concerned is punishment. This punishment might be inflicted for a different purpose depending upon whether the contempt be civil or criminal, but, nevertheless there is punishment just as much in one case as in the other. This punishment might take the form of a fine, or imprisonment, or both. Under these circumstances, we believe, it was error for the trial court to deny the request of the defendant to submit oral testimony. It might be that without such request the court could go ahead and determine the matter upon affidavits, but in view of the fact that it is necessary for the court to make findings of fact and enter judgment, we believe that a trial of the issues of fact is contemplated, and that the defendant at least has the privilege upon the hearing of producing witnesses in defense of the alleged contempt. We have no statutory procedure for this particular contempt proceeding. However, we do have a statutory...