Smith v. Smith.
| Decision Date | 26 February 1918 |
| Citation | 81 W.Va. 761 |
| Court | West Virginia Supreme Court |
| Parties | Smith v. Smith. |
Section 4, of ch. 1(30 of the Code, impliedly withholding or denying a writ of error to a judgment for contempt consisting of non-performance of, or disobedience to, a judgment, decree or order, is limited in its operation to judgments, decrees and orders rendered, pronounced and entered by courts having jurisdiction to render, pronounce and enter them, and to such valid judgments, decrees and orders as the court has jurisdiction and power to enforce by process of contempt, (p. 762).
Statutory abrogation of a remedy afforded by general equity jurisprudence, denies to courts of equity, power and jurisdiction to adopt and use it. (p. 764).
Sections 1 and 2, of ch. 139 of the Code, deny to courts of equity jurisdiction and power, previously accorded them by general equity procedure, to enforce decrees for the payment of-money, by process of contempt, (p. 765).
Though a decree for alimony constitutes a lien on the real estate of the party against whom it is pronounced and may be enforced by execution, it is a decree not merely for the payment of money, but for the payment of money in discharge of the high marital duty of maintenance, wherefore it may be enforced by attachment for contempt also. (p. 765).
A writ of error does not lie to a judgment of contempt for disobedience of a decree requiring payment of alimony, (p. 765).
diction.
A. court of chancery may, by proper procedure, commit a disobedient or recalcitrant litigant for refusal to perform an affirmative act lawfully required of him by its decree, for the benefit of the opposite party to the suit, by an order entered upon its own records, under the style of the cause in which such decree was pronounced, as a means of coercing performance of the act so required. In so far as the decisions in State v. Fredlock, 52 W. Va. 232, State v. Cunningham, 33 W. Va. 007, State v. Irwin, 30 W. Va. 404, State v. Frew and Hart, 24 W. Va. 416 and State v. Bridge Company, 16 W. Va. 864, deny such jurisdiction and power to courts of chancery, they are disapproved and overruled, (p. 768).
In such cases, the committal is not deemed in law to be punishment for any criminal offense. The contempt for which it is inflicted is civil in its nature and only incidentally involves an offense ' to the court or the public, (p. 770).
Error to Circuit Court, Iloane County.
Action by Laura M. Smith against B. C. Smith. From a judgment of committal for contempt of court by reason of the nonpayment of installments of alimony, defendant brings error.
Writ of error dismissed.
Charles E. Hogg, and Charles J. Hogg, for plaintiff in error.
II. C. Ferguson, for defendant in error.
pofefenbarcjer, president;
A judgment of committal for a contempt of court, effected by non-payment of installments of alimony, decreed against the plaintiff in error, constitutes the subject matter of this writ of error; and one very vital question arises on the motion to dismiss the writ as having been improvidently awarded.
A judgment for contempt of a trial court, consisting of disobedience of its judgment, decree or order, is not reviewable in the appellate court, if the trial court had jurisdiction of the cause in which it rendered, pronounced or-entered the violated judgment, decree or order, and did not cxeceed its jurisdiction in doing so. State ex rel. v. Baltimore & Ohio Ry. Co., 73 W. Va. 1; Code, ch. 160, sec, 4.
Full acquiescence in the foregoing proposition is evidenced by the brief filed for the plaintiff in error; but it is earnestly insisted that the contempt procedure complained of was action in excess of the jurisdiction of the court, because, it is said, sec. 1, of ch. 139, of the Code, has stripped courts of equity of their power to enforce.decrees.for alimony by such procedure. That section places a decree for land or personal property or for the payment of money on the same footing as a judgment for such property or money, and then proceeds as follows: "But a party may proceed to carry into execution, a decree or order in chancery, other than for the payment of money, as he might have done, if this and the following section had not been enacted.'' The next section makes the beneficiaries of decrees requiring the payment of money, judgment creditors, and authorizes issuance of executions thereon.
If the construction contended for should be conceded, it may not follow that a writ of error lies to a judgment in a contempt proceeding; for the statute expressly withholds a writ of error to a judgment for a contempt effected by disobedience of a judgment, decree or order. It reads: "To the judgment of a circuit court for a contempt of court, other than for the non-performance of, or disobedience to, a judgment, decree or order, a writ of error shall lie from the supreme court of appeals." Code, ch. 160, sec, 4. State ex rel. v. Baltimore & Ohio By. Co., 73 W. Va. 1, recognizes an implied exception to this statute founded upon lack of jurisdiction in the circuit court, but the lack of jurisdiction, constituting the ground of the exception, as defined in that case, pertains to the judgment or decree for enforcement of which the contempt proceeding is invoked. That decision necessarily denies to the statute in question a part of the force and effect literally imported by its terms. If an exception thereto can be validly founded upon lack of jurisdiction to pronounce the decree for enforcement of which contempt procedure is resorted to, it is difficult to see any reason why lack of jurisdiction in the process of enforcement would not constitute a sufficient basis for another or further exception. In the latter case, the lack of jurisdiction would be more clearly and directly involved, than in the former. In neither, is there any foundation for it in the terms of the statute. At the same time, it must be remembered that a judgment or decree rendered without jurisdiction, is a nullity, wherefore it may be said there is no judgment or decree, in such case, to be enforced. On the other hand, when the judgment or decree is not questioned and its binding force is beyond doubt, there is an order of the court which the party proceeded against is bound to respect and obey. Nevertheless, if there is no jurisdiction or power to enforce obedience, by the means adopted, the party proceeded against is under no duty to obey in the particular manner in which the contempt proceeding endeavors to make him perform. Obviously, therefore, there is lack of power or jurisdiction of the court in either case; and, if proper construction results in an implied exception to the operation of the statute in the one instance, it must necessarily do so in the other. Properly read, therefore, the statute withholds a writ of error to a judgment for contempt consisting of non-performance of, or disobedience to a judgment, decree or order, if the court rendering it had jurisdiction to pronounce it and has jurisdiction and power to enforce it by contempt procedure. All judgments, decrees and orders are not enforceable in that way.
Every act of a court founded upon an erroneous interpretation of a statute or a misconception of the common law and variant therefrom, is not void for want of jurisdiction. It is familiar law that a court has as much power to decide erroneously as it has to decide correctly. Mere errors in decisions upon questions of law are not acts in excess of jurisdiction. In some instances, however, they are. In the determination of the meaning of laws pertaining to their own power and jurisdiction, courts decide and act at their peril. On the other hand, in administering law applicable to the rights of the litigating parties, their acts founded upon erroneous interpretations of laws are, ordinarily, mere errors of judgment. These propositions are so self-evident and so thoroughly attested by the decisions of this and other courts, that authority for them need not be cited.
Courts derive their authority and powers from the constitution and laws of the state and, unless the power or authority of a court to perform a contemplated act, is found therein, the act, if done, is coram non judice. 7 R. C. L., p. 1030; N. & W. Ry. Co. v. Pinnacle Coal Co., 44 W. Va. 574. In the absence of a statutory modification or abrogation, courts of general jurisdiction have all the powers conferred upon them by the common law, but such remedies and powers as the constitution or statutes have abrogated, they do not possess. Obviously, therefore, any effort on the part of a court to employ an abrogated remedy, formerly permitted to it by the common law or general equity jurisprudence, would be an act in excess of its jurisdiction.
The statute invoked in resistance of the contempt procedure manifestly deals with remedies as well as rights and impliedly forbids enforcement of a decree or order in chancery for the payment of money, otherwise than by execution. It makes the decree the equal of a judgment and declares it shall be embraced by the word "judgment" whenever it is used in certain chapters. It also makes the person entitled to any decree or order requiring the payment of money, a judgment creditor, even though the money may be required to be paid into a court, or a bank, or other place of deposit. In all such cases, it authorizes an execution on the decree or order. Furthermore, the decree becomes a lien upon the real estate of the party against whom it is pronounced. Having done all this, it then declares that the party in whose favor it is may proceed to carry into execution, a decree or order in chancery, other than for the payment cf...
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