State ex rel. Wright v. Upchurch

• Decision Date: 15 January 1953
• Citation: 194 Tenn. 657,30 Beeler 657,254 S.W.2d 748
• Parties: , 194 Tenn. 657 STATE ex rel. WRIGHT v. UPCHURCH, Sheriff.
• Court: Tennessee Supreme Court

Page 748

254 S.W.2d 748

30 Beeler 657, 194 Tenn. 657

STATE ex rel. WRIGHT v. UPCHURCH, Sheriff.

Supreme Court of Tennessee.

Jan. 15, 1953.

Reagan, Neal & Craven, Jamestown, for appellant.

A. R. Hogue, Jamestown, for appellee.

BURNETT, Justice.

This is a habeas corpus proceeding instituted by Willie Wright as the relator against Clayton Upchurch, Sheriff of Fentress County, who was holding the relator in jail pursuant to an order of the Judge of the Circuit Court of that County.

The Circuit Court in the cause of Hattie Wright vs. Willie Wright committed Willie Wright to jail for failure to pay an alimony award to his wife. The order committing the appellant to jail among other things said:

'on the petition for contempt filed by the plaintiff, Hattie Wright, and answer by defendant and an oral and documentary evidence offered in open Court, when it appeared to the Court that the defendant had wilfully and maliciously failed and refused to obey the former order of Court requiring him to pay into Court the sum of $30 per month for the support of said children, as required by the former decree, * * *.'

Under this order the sheriff placed the relator, appellant, in jail and was holding him there at the time the petition herein was filed. The petition is based on the proposition that the decree, pertinent portions of which are above copied, does not show on its face that the appellant was able to perform the act required or that he was able to pay the sum therein decreed. On the hearing on the present petition the only proof offered was that of the sheriff that the petitioner was in his custody pursuant to the order of court and the clerk's testimony introducing a certified copy of the decree committing the petitioner, appellant, to the custody of the sheriff. The sheriff's counsel made a motion to dismiss because the matter should have been brought in the court that committed the petitioner to jail and not in a separate court having concurrent and co-ordinate jurisdiction. The trial judge dismissed the petition for habeas corpus and remanded the appellant to the custody of the sheriff because 'it satisfactorily appearing to the court from the proof that there is sufficient legal cause for the detention of said Willie Wright, * * *'

Section 10121 of the Code is as follows:

'But if the contempt consists in an omission to perform an act which it is yet in the power of the person to perform, he may be imprisoned until he performs it.'

In Cash v. Quenichett, 52 Tenn. 737, 741, the court said:

'The general law upon the subject of contempts provides, that where the contempt consists in an omission to perform an act which is yet in the power of the person to perform, he may be imprisoned until he performs it. Code, Sec. 4108 (now § 10121 above quoted). The resort to this extreme remedy under this section presupposes the exercise of a sound judicial discretion upon the question whether or not the act ordered to be performed is in fact within the party's power of performance. For if it be not, the power of imprisonment under the law does not exist.'

In Crowder v. Hayse, 9 Tenn.App. 55 (certiorari denied) it was held that the judgment itself must affirmatively show and set out the ability of the defendant to comply with the order.

The burden of proof of the inability of a defendant in a divorce action to pay the alimony ordered is on this defendant. Clark v. Clark, 152 Tenn. 431, 440, 278 S.W. 65.

The determination of whether or not the defendant in a divorce action has the ability to pay or comply with the order of the court should be left to the court hearing that action. If the trial court that hears the action determines that the party so held in contempt does have the ability to pay then the party has the right to appeal to the Court of Appeals and then to this court by certiorari to have the action of the trial court thus determining his ability to pay reviewed. This being true a party who has been held in contempt of court should not be allowed to substitute a writ of habeas corpus to perform the function of a writ of error because such an inquiry should be left to the jurisdiction of the court ordering his imprisonment.

The Supreme Court of Colorado in In Re: Popejoy, 26 Colo. 32, 55 P. 1083, 1084, 77 Am.St.Rep. 222, 225 said:

'The writ of habeas corpus cannot be made to serve the purpose of a writ of error, and whether or not the evidence...