State v. Second Judicial District Court

• Decision Date: 14 May 1894
• Citation: 40 P. 66,14 Mont. 396
• Parties: STATE ex rel. NIXON v. SECOND JUDICIAL DISTRICT COURT et al. [1]
• Court: Montana Supreme Court

40 P. 66

14 Mont. 396

STATE ex rel. NIXON v. SECOND JUDICIAL DISTRICT COURT et al. ^[1]

Supreme Court of Montana

May 14, 1894

Application by the state on the relation of S. M. Nixon for a writ of certiorari to review an order committing relator for contempt.

John W Cotter, for relator.

Geo Haldorn and Oliver M. Hall, for respondents.

PER CURIAM.

This is an application for a writ of certiorari to review the action of the district court in committing the relator to jail for contempt in disobedience of an order compelling him to pay alimony pendente lite to the plaintiff in the divorce action of May Nixon against the relator. This application is made in aid of an application of a writ of habeas corpus, in which relator alleges that he is unlawfully imprisoned by virtue of the order of the district court, committing him for contempt as above cited. In that divorce action the court made an order that the defendant (relator herein) pay to plaintiff as alimony pendente lite $40 a month, and as counsel fees $60. This alimony was paid for some months, and no appeal was taken from the order; nor does relator now complain that the order as originally made was wrong in any respect. But the alimony was not paid for the month of March, nor since that time. Relator was accordingly cited in the district court to show cause why he should not be punished for contempt for the nonpayment of the same. On that hearing he recited facts which he claimed showed his inability, or his want of faculty, to pay the alimony. Notwithstanding this attempted showing on his part, the court ordered him imprisoned until the order for alimony was obeyed. This imprisonment relator alleges was illegal, and on this writ of certiorari he asks us to review the action of the district court in ordering him imprisoned on such contempt proceedings. He also asks a discharge on his application for a writ of habeas corpus.

The order to pay alimony pendente lite was a judgment which was appealable. In re Finkelstein (Mont.) 34 P. 847. No appeal was taken by defendant in the divorce case from that order or judgment. When that judgment was rendered, it must be presumed that the court passed upon and decided the matter of defendant's faculty to pay the alimony; that is to say, that action of the court adjudicated two matters: First that the defendant should pay such sum as alimony; and second, that he had the faculty to pay it. That judgment remained unattacked when the contempt proceedings were taken which resulted in this present imprisonment of the relator. That order for alimony was a judgment, and had the characteristics and attributes of a judgment. A judgment cannot be attacked, as it was sought to do in this case by presenting affidavits on a proceeding seeking to enforce such judgment. When the affidavits were presented on the contempt proceeding, there stood against the defendant a valid, unchallenged judgment, requiring him to pay the alimony, as therein set forth. If he considered that judgment was wrong originally, he could have appealed therefrom....