Sutherland v. Workman
| Decision Date | 08 March 1938 |
| Docket Number | (No. 8763) |
| Parties | Malcom G. Sutherland v. Everett Workman, Sheriff |
| Court | West Virginia Supreme Court |
Where the regular judge of a court cannot, for any reason, hear and determine a suit in equity, pending therein, and enters an order in compliance with Code, 51-2-10, directing the election of a special judge for such suit, and all the parties thereto and their counsel are present when the election so directed is held; and after the election of such special judge, and the taking of the oaths of office required by law, such parties and their counsel make an agreement evidenced by an order of the court entered of record that the special judge so elected and qualified shall have jurisdiction of the suit for which he was elected until the further order of the court; and under said election and agreement such special judge is permitted, without objection, to enter orders or decrees therein, no party to such suit will, at a later date, be permitted to raise the question of the jurisdiction of such special judge to hear and determine such cause, until by proper proceeding and order such special judge is removed, or his powers vacated by resignation or otherwise.
Where, by an order of record, a court has abused its discretion in the award of alimony and counsel fees in a divorce proceeding, or a suit for separate maintenance, this court, under its original jurisdiction in habeas corpus, will relieve the injured party from imprisonment on charges of contempt of court for failure to comply with such order.
Original proceeding for writ of habeas corpus by Malcolm G. Sutherland against Everett Workman, Sheriff.
Writ awarded.
N. D. Waugh, for petitioner.
Ira P. Hager, for respondent.
The petitioner, Malcolm G. Sutherland, invokes the original jurisdiction of this court through the writ of habeas corpus, Code, 51-1-3, and seeks relief from imprisonment imposed upon him by a special judge, sitting in the circuit court of Logan County, in the divorce proceeding of Anna Sutherland against Malcolm G. Sutherland, in which the petitioner was adjudged in contempt of court on account of failure to pay alimony and suit money decreed to be paid by him to Anna Sutherland, and committed to jail, there to be held until the order of the court with respect thereto should be complied with.
A short summary of the events leading up to the filing of the petition in this proceeding seems necessary. On September 10, 1935, a decree was entered in favor of Anna Sutherland in the original cause, granting to her a divorce with alimony, and provided for the custody of the children of the marriage thereby dissolved. The alimony was paid for a time, but on January 25, 1937, complaint was made on account of failure to pay, and orders were entered respecting such complaint on March 8, 1937, March 19, 1937, and March 23, 1937. By the order of March 23, 1937, it appears that some question had arisen as to whether or not the special judge had been duly elected as such, and it was then agreed, and made a matter of record, that such special judge had been legally elected, and that the orders theretofore made by him in said cause were valid and binding. On April 12, 1937, an order was entered in the cause, showing the election of the special judge and an agreement between the parties and their counsel that he should continue to have jurisdiction of the cause. Thereafter, on July 30, 1937, an order was entered by the special judge with respect to alimony. On November 8, 1937, a petition for abatement or reduction of the alimony was filed by petitioner, a hearing had, and alimony fixed at $65.00 per month, so long as a son of the petitioner should be kept in college, and to be increased to $100.00 per month should the son be taken out of college. From this decree, an appeal was allowed by this court on November 23, 1937, and is now on the docket for future hearing.
On January 28, 1938, the matter of alimony pending in the appeal, and the allowance of money for counsel fees therein, was considered by the special judge. On that date, for the first time, the question of the right of the special judge to act in the cause was raised by the petitioner. The objection then raised to the jurisdiction of the special judge was overruled, and, notwithstanding the fact that an appeal had been awarded by this court to the order of November 10, 1937, awarding alimony at the rate of $65.00 per month, the special judge allowed the same amount as temporary alimony pending such appeal, and in addition thereto, $100.00 for counsel fees. The petitioner, not paying the alimony and counsel fees so directed to be paid, was, on February 14, 1938, upon a hearing held before said special judge, adjudged to be in contempt of court and committed to jail until he should pay the sum of $165.00 and continue to pay $65.00 each month until the further order of the court. Thereupon, petitioner invoked the original jurisdiction of this court through the writ of habeas corpus.
Petitioner asserts two grounds on which he alleges he should be released from custody: (1) that the special judge was not legally elected and had no jurisdiction to enter the order allowing alimony and counsel fees, and that such order, being void, could not be made the basis of a contempt proceeding; and (2) that the petitioner had purged himself of the contempt alleged by reason of a clear showing that he was unable to comply with the order of the court with respect to the payment of alimony and counsel fees. These positions will be taken up in their order.
Section 10, Article 2, Chapter 51 of the Code provides for the election of a special judge in the absence of a regular judge or where it is improper for him to act, and provides that when such special judge is to be elected for a particular case, no election shall be held until an order shall be entered by the regular judge naming the case and stating the reasons which make it necessary to elect such special judge; also, that at least one attorney of record for each of the parties to such suit shall have reasonable notice in writing of the time of any proposed election, which notice, and the return of the service thereof, shall be filed and made a part of the record in the case. There is also a provision by which by...
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State ex rel. Cecil v. Knapp
...them; and its action in making such award constituted an abuse of discretion and exceeded its legitimate powers. Sutherland v. Workman, 119 W.Va. 683, 195 S.E. 856. In that case this Court held in point 2 of the syllabus that: 'Where, by an order of record, a court has abused its discretion......
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State ex rel. Nutter v. Mace
... ... prima facie evidence only ... However, ... the decision of this Court in the case of Sutherland v ... Workman, 119 W.Va. 683, 195 S.E. 856, wherein petitioner ... was imprisoned by a circuit court for contempt, is contrary ... to the ... ...
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State Ex Rel. Selina Nutter v. Mace
...commission may also be considered as prima facie evidence only. However, the decision of this Court in the case of Sutherland v. Workman, 119 W. Va. 683, 195 S. E. 856, wherein petitioner was imprisoned by a circuit court for contempt, is contrary to the general rule above stated. The princ......
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Moore v. Hall, 16973
...if supported by sufficient evidence, would relieve the relator from imprisonment on charges of contempt of court. Sutherland v. Workman, 119 W.Va. 683, 195 S.E. 856 (1938)." Under a recent amendment to W.Va.Code, 48-2-22(c) (1984), this provision is made: "[I]f the court ... finds the defen......