State ex rel. Seifret v. Branner
| Citation | 93 N.E. 70,174 Ind. 684 |
| Decision Date | 29 November 1910 |
| Docket Number | No. 21,674.,21,674. |
| Parties | STATE ex rel. SEIFRET v. BRANNER. |
| Court | Supreme Court of Indiana |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, St. Joseph County; Walter A. Funk, Judge.
Contempt proceedings on the relation of John Seifret against Ada J. Branner. Defendant was discharged, and relator and the state appeal. Affirmed.Cyrus E. Pattee, Fred C. Gabriel, James Bingham, Alexander G. Cavins, William H. Thompson, and Edward M. White, for appellants. Joseph G. Orr and Charles Weidler, for appellee.
Appellee was sought to be charged with an indirect contempt upon the filing of an affidavit charging that on the 13th day of April, 1908, Ada J. King was granted a divorce from Archillious King by the St. Joseph circuit court, given her maiden name of Ada J. Cripe, and prohibited from remarrying for a period of two years from said date; that the said Ada J. King, alias Ada J. Branner, did willfully, knowingly, and corruptly violate said order of court by marrying William Branner on the 16th day of May, 1908, in the city of St. Joseph, state of Michigan. That both parties to said marriage were, and had been for more than two years preceding, residents of the state of Indiana, St. Joseph county, and immediately after said marriage returned thereto, and lived and cohabited thereafter in said county and state until the 27th day of November, 1909. This affidavit was not filed in the original cause for a divorce, but was filed as an independent proceeding entitled, “In the matter of the charges against Ada J. Branner,” and conducted by that style up to this appeal. Upon the filing of this affidavit, a rule was entered against the appellee to show cause, if any, why she should not be punished as for contempt, to which she appeared. An affidavit was then filed charging that she was about to leave the jurisdiction, and remain absent to avoid hearing and punishment, and upon this affidavit a motion was made by the prosecuting attorney to require her to give bond for her continued appearance pending the determination of the cause. This motion was overruled, and the petitioner excepted, and her motion to discharge the rule for the reason that the information did not state facts sufficient to constitute a contempt was sustained, appellee discharged, and the relator and the state severally excepted.
The questions on these rulings are the only questions presented. As to the motion to require the appellee to give bail, whilst the facts stated in the affidavit standing alone would undoubtedly have authorized the court to require a bail, the fact that it was not required, and that it was a matter in the sound discretion of the court, would only authorize our interference in case of its abuse. The court in passing upon the motion to require bail was required to look to the charge made, and in the form made, and as the affidavit was held bad, it is clear that the court was justified in not requiring bail; for to have required bail when appellee might not have been able to give it, and thereby be compelled to go to jail, and the court afterward conclude that no offense had been charged, would have been able to do a great wrong without accomplishing a right; besides, if the affidavit was insufficient to charge a contempt, the petitioner or relator cannot complain of the refusal to require bail, so that the only material inquiry here is as to the sufficiency of the affidavit upon the charge of contempt. The argument presented by the state is that of the inherent power of courts to punish contempt for their orders, in upholding their dignity, and to punish for violation of their decrees. That is not questioned by appellee, but she stands upon the proposition that she is not charged with the violation of a legal order of the court, or the violation of a statute imposing a penalty. This contention involves both the construction and the force of the statute against remarriages, where jurisdiction is obtained by publication alone, and the legal force of the affidavit itself.
The statute provides that: Section 1065, Burns' Ann. St. 1908.
It is settled here as elsewhere, that proceedings of this character are in their nature criminal, and presumptions will not be indulged against a defendant, but in his favor. State v. Rockwood (1902) 159 Ind. 94, 64 N. E. 592;Whitten v. State (1871) 36 Ind. 196;Hawes v. State (1898) 46 Neb. 149, 64 N. W. 699; Phillips v. Welch (1876) 11 Nev. 187; 4 Encyc. Pl. & Pr. 769. The charge constituting the offense must be specifically made, and jurisdiction must affirmatively appear in the charge, and will not be aided by presumptions. State v. Rockwood, supra; Worland v. State (1882) 82 Ind. 49;McConnell v. State (1874) 46 Ind. 298;Hawthorne v. State (1895) 45 Neb. 871, 64 N. W. 359; Hawes v. State, supra; State v. Root (1896) 5 N. D. 487, 67 N. W. 590, 57 Am. St. Rep. 568;State v. Sweetland (1893) 3 S. D. 503, 54 N. W. 415;Young et al. v. Cannon et al. (1880) 2 Utah, 560;Wyatt v. People (1892) 17 Colo. 252, 28 Pac. 961;Herdman v. State (1898) 54 Neb. 626, 74 N. W. 1097; 4 Encyc. Pl. & Pr. 770.
It is urged by relator that as there can be no judgment prohibiting remarriage except in case of jurisdiction of the person by publication, it being charged that appellee violated the order of the court by remarrying within two years, that the charge is sufficient, without alleging that service was without other notice than by publication in a newspaper, and that the presumption is in favor of the judgment being one in which the service was by publication alone, and an authorized order. Appellee insists that it must have been alleged that the proceeding was without other notice than by publication and that no presumption can be indulged in a collateral proceeding. Our statute marks the distinction between contempts of a purely criminal character, affecting the orderly conduct of the business of the courts, and their lawful process, and those “for the enforcement of civil rights and remedies.” Burns' Ann. St. 1908, §§ 1040-1049; Perry v. Pernet (1905) 165 Ind. 67, 74 N. E. 609;Thistlethwaite v. State (1898) 149 Ind. 319, 49 N. E. 156;Baldwin v. State (1890) 126 Ind. 24, 25 N. E. 820.
In the case of civil rights and remedies, we do not doubt that in courts of general jurisdiction, the strictness is not required that obtains in common law, or criminal contempts, and that in such cases the charge is sufficient when it is charged...
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