Snow v. Snow

• Decision Date: 04 February 1896
• Docket Number: 623
• Court: Utah Supreme Court
• Parties: GENEVA M. SNOW, RESPONDENT v. C. EDGAR SNOW, APPELLANT

43 P. 620

13 Utah 15

GENEVA M. SNOW, RESPONDENT v. C. EDGAR SNOW, APPELLANT

No. 623

Supreme Court of Utah

February 4, 1896

Appeal from the district court of the Third judicial district Territory of Utah. Hon. George W. Bartch, Judge.

Bill by Geneva M. Snow against C. Edgar Snow for divorce. Defendant appeals from an order adjudging him guilty of contempt in refusing to pay permanent alimony. Appeal allowed and judgment affirmed.

Affirmed.

R. H Jones, for appellant.

Powers Straup & Lippman, for respondent.

Appeal does not lie from the order adjudging defendant guilty of contempt. People v. Owens, 8 Utah 20; Clark v. People, 12 Am. Dec. 184, notes; In re Whittemore, 35 P. 529; Staples v. Staples, 24 Lawyers' Rep. 433; 2 Enc. of Pleading and Practice, 130.

Defendant's remedy was to have applied for a modification of the decree before the contempt proceedings were instituted. State v. Second District, 40 P. 66; O'Callaghan v. O'Callaghan, 69 Ill. 532.

The question of ability to pay is one fact for the court below. Ex parte Cottrell, 59 Cal. 417.

MINER, J. ZANE, C. J., and YOUNG, District Judge, concur.

OPINION

MINER, J.:

The record shows that on November 29, 1893, after a personal service of the summons, the respondent was granted a decree of divorce, and the custody of a minor child, and $ 10 per month alimony, payable monthly during her life as long as she remained unmarried, and also costs of suit. This decree was not appealed from, and the costs and alimony were not paid. In February, 1895, the respondent caused a copy of the decree, with demand for payment, to be served on appellant. On the 13th of February, 1895, plaintiff served notice and took proceedings to modify the decree by striking out the allowance of alimony. A hearing was had thereon. The motion was denied, and appellant was adjudged guilty of contempt of court for his refusal and neglect to pay the alimony allowed with costs, and was given 30 days time in which to purge himself of the contempt, or show cause why he should not be punished for such contempt. No cause being shown to the contrary, on May 2, 1895, the court ordered that a warrant of arrest issue, and that the appellant be committed to the custody of the marshal until he purge himself of such contempt. From these orders, made after the decree, this appeal is taken. Several grounds for reversal, based upon the insufficiency of the evidence and an alleged former settlement between the parties, are also relied upon by appellant's counsel.

The first question presented by the appeal is whether an appeal will lie to this court from an order adjudging the appellant guilty of contempt in refusing to pay alimony and costs ordered by the court. Counsel for the appellant insists that the judgment for contempt was a civil proceeding, under section 3632, Comp. Laws Utah 1888, which provides that "a judgment or order in a civil action, except when expressly made final, may be reviewed as prescribed in this Code, and not otherwise;" and subdivision 1, § 3635, Comp. Laws Utah 1888, which provides that "an appeal may be taken from a final judgment in an action or special proceeding commenced in the court in which the same is rendered," authorizes the appeal in question. In the case of People v. Owens, 8 Utah 20, 28 P. 871, this court held that it would not review proceedings in contempt when the court below had jurisdiction. In that case the court below ordered the party to produce in evidence certain records which he had in his possession, and he was adjudged guilty of contempt in disobeying the order of the court, and a fine was imposed upon him, from which judgment he appealed. In Ex parte Whetstone, 9 Utah 156, 36 P. 633, the defendant was convicted under section 725, Rev. St. U.S. in a criminal proceeding for contempt, for procuring a witness who was duly subpoenaed to appear before the grand jury, and testify in a criminal case, to leave the territory and not appear as such witness. This court refused a writ of habeas corpus to review his commitment for contempt, when the trial court had jurisdiction. In re Kelsey, 12 Utah 393, 43 P 106, decided at the last December term, this court refused a writ of habeas corpus to the relator, who was adjudged guilty of contempt by the trial court for refusing to pay a monthly allowance and costs of the proceeding pending divorce proceedings, and before judgment; the court holding that the order of conviction was an interlocutory order made pendente lite, and not a final judgment, from which an appeal would lie. In Ex parte Whitmore, 9 Utah 441, 35 P. 524, this court held that an appeal would not lie from an order adjudging the appellant guilty of contempt, and imposing a fine for willfully and contemptuously violating the decree and injunction of the court in removing a measuring box placed in the channel of a stream for the purpose of measuring and diverting the water of the stream for irrigation purposes, in direct violation and disobedience of such injunctional order, holding this to be a criminal contempt, and therefore the order of conviction was not appealable. In this case the court carefully examined and discussed the question of civil and criminal contempt, holding that the proceedings in the case which culminated in the conviction and fine appealed from were for a criminal contempt, and were not instituted to bestow the damages to be recovered for the injury complained of upon the injured party, because his rights had been infringed upon, but that the proceeding had been brought in the name of the people, for the purpose of punishing the party who had contemptuously disobeyed and violated the direct order and command of the court; that the injured party obtained no pecuniary benefit from the order of conviction, and that, if he had any remedy for damages, it was not under this proceeding; that the fine, if paid, would go to the territory, and not to the injured party. The court said: "The act restrained had been done, and it was out of the power of the petitioner to undo it. The water had been appropriated by him, and the measuring box had been taken away and destroyed, in violation of the express order and command of the court. The main object of the proceeding was to vindicate the authority of the court. Where the contempt is such that it results in a violation of the rights of the public or of the rights of an individual, which have been adjudicated and fixed by the court, and a punishment is imposed in the interest of public justice, and not in the interest of any individual litigant as a money indemnity, the offense is necessarily of a public or criminal nature, and is clearly covered and made punishable by our statutes as a public offense. In such cases, if a fine is imposed, its limit is fixed and determined by the statute, and is not fixed by the injury demanded or sustained by the individual injured. The proceeds when collected, go into the public treasury, and not for the benefit of the party injured." The contempt consisted in doing a forbidden act that was not only injurious to the opposite party, but was a contemptuous violation of the express commands of the court. The process was therefore criminal in its nature, and the conviction was properly followed by fine and costs that did not exceed the sum that the court was authorized to impose, under Comp. Laws Utah 1888, § 3821, subd. 5, and section 3830. The fine is a punishment, and not an indemnity; and if imprisonment is also imposed, it is in the interest of public justice and becomes a penalty, and in no way becomes an indemnity to the individual injured. People v. Court of Oyer and Terminer, 101 N.Y. 245, 4 N.E. 259; State v. Davis (N. D.), 2 N.D. 461, 51 N.W. 942; State v. Giles, 10 Wis. 101; In re Murphey, 39 Wis. 286. In discussing the same subject this court said: "There is another class of contempt proceedings, which are purely remedial in their character. This class embraces such contempt proceedings as were resorted to by a successful litigant in equity to secure the fruits of his litigation in case of the refusal of the defeated party to obey the order or decree made in such action. Such a proceeding, while in form a contempt proceeding, was never instituted primarily to vindicate the court's authority, but for the sole purpose of giving the successful suitor the fruits of his litigation." It is true that many states have enacted statutes regulating proceedings as for contempt in civil cases, and the decisions upon the subject are somewhat conflicting, and almost irreconcilable. Upon this subject the supreme court of Nevada, in Phillips v. Welch, 11 Nev. 187, says: "If the contempt consists in the refusal of a party to do something for the benefit or advantage of the opposite party which is ordered to be done, the process is civil, and he stands committed until he complies with the order. The order in such cases is not punitive, but coercive. If, on the other hand, the contempt consists in the doing of a forbidden act injurious to the opposite party, the process is criminal, and conviction is followed by a penalty of fine or imprisonment, or both, which is purely punitive. In the former case the private party alone is interested in the enforcement of the order; and the moment he is satisfied, the imprisonment terminates. In the latter case the state alone is interested in the enforcement of the penalty. It is true the private part...