Tims v. Tims

Decision Date13 October 1947
Docket NumberNo. 5835.,5835.
Citation204 S.W.2d 995
PartiesTIMS v. TIMS.
CourtTexas Court of Appeals

Appeal from District Court, Potter County; Henry S. Bishop, Judge.

Contempt proceedings by Opal Zillah Tims against Gilbert Edgar Tims. From an order of contempt, the defendant appeals.

Appeal dismissed.

See also 201 S.W.2d 865.

W. F. Nix, of Amarillo, for appellant.

W. T. Brothers, of Amarillo, for appellee.

STOKES, Justice.

On October 23, 1946, in Cause No. 21525-A, entitled Opal Zillah Tims v. Gilbert Edgar Tims, pending in the District Court of the 47th Judicial District in and for Potter County, a decree of divorce was granted to the plaintiff and the defendant was ordered to pay into the registry of the court the sum of $50 per month for the support and maintenance of two of their children. Certain personal property, consisting of household and kitchen furniture, was decreed to the plaintiff and the defendant was ordered to deliver the same to her. On August 28, 1947, the plaintiff in that case, Opal Zillah Tims, filed in the district court her affidavit in contempt alleging that the judgment in the divorce case became final, after being appealed to this court and a writ of error being denied by the Supreme Court, but that the defendant Gilbert Edgar Tims, appellant here, had openly and willfully violated the order of the district court in the decree of divorce and had failed and refused to pay the monthly allowance of $50 or any part thereof, and that he had likewise failed and refused to deliver to her the personal property decreed to her. She prayed that appellant be held in contempt and that suitable punishment be administered to him.

Appellant filed an answer to the affidavit in which he leveled a number of special exceptions, pleaded not guilty to the contempt charge, and that he was not financially able to pay the allowance decreed by the court in the divorce case.

When the contempt proceeding was called for trial, appellant demanded a jury and paid the jury fee, but the court ruled he was not entitled to a jury and proceeded to hear the contempt proceeding without the aid of a jury. The hearing resulted in a judgment and order holding appellant in contempt of court and conditionally assessing against him a fine of $100 and committing him to jail for three days and until the fine was paid. The condition upon which the order was entered was that if appellant, within 30 days, should deliver to the appellee the personal property awarded to her, the order of contempt would thereby be satisfied; otherwise, it should be enforced.

Appellant gave notice of appeal and has perfected an appeal to this court, and the appellee presents a motion to dismiss the appeal upon the ground that this court does not have jurisdiction. She alleges that, under the procedure and law of this State, no appeal lies directly from an order holding one in contempt of court.

It has been the well settled law of this State since the decision by the Supreme Court of the case of State v. Thurmont, 37 Tex. 340, that no jurisdiction is vested in the appellate courts directly to review a contempt proceeding. The only manner in which such a proceeding and judgment thereon can be reviewed is by means of habeas corpus. Hudgens v. Yancey Tex.Civ.App., 284 S.W. 347; Borrer v. State, Tex.Civ.App., 63 S.W. 630; Lawley v. State, 117 Tex.Cr.R. 14, 36 S.W.2d 1035, and cases there cited.

Appellant concedes such to have been the law until 1942 when the Supreme Court decided the case of Harbison v....

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18 cases
  • In re Reece
    • United States
    • Texas Supreme Court
    • 27 d5 Maio d5 2011
    ...FN120. Id. 121. The opinion then goes on to note several then-recent decisions to that effect. Id. (citing Tims v. Tims, 204 S.W.2d 995 (Tex.Civ.App.-Amarillo 1947, writ ref'd); Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890 (1956); Ex parte Arapis, 157 Tex. 627, 306 S.W.2d 884 (1957)). F......
  • Collins v. Kegans
    • United States
    • Texas Court of Criminal Appeals
    • 30 d3 Janeiro d3 1991
    ...Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890, 893 (1956); The State v. Thurmond, 37 Tex. 340, 341 (1872); Tims v. Tims, 204 S.W.2d 995 (Tex.App.--Amarillo, 1947, writ ref'd); Dallas County by Commissioners Court v. Mays, 747 S.W.2d 842, 845 (Tex.App.--Dallas) reversed for other reasons ......
  • Deramus v. Thornton
    • United States
    • Texas Supreme Court
    • 24 d3 Fevereiro d3 1960
    ...contempt judgment can be attacked only collaterally and that by way of habeas corpus. Recent decisions to that effect are: Tims v. Tims, Tex.Civ.App., 204 S.W.2d 995, wr. er. ref.; Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890; Ex parte Arapis, 157 Tex. 627, 306 S.W.2d We do have authori......
  • Texas Dept. of Human Resources v. Hebert, 6359
    • United States
    • Texas Court of Appeals
    • 28 d5 Agosto d5 1981
    ...paid. This court has no jurisdiction of an appeal from a contempt proceeding. State v. Thurmond, S.Ct., 37 Tex. 340; Tims v. Tims, CCA (Amarillo) Er.Ref. 204 S.W.2d 995; Garrison v. Garrison, CCA (Austin) NRE, 544 S.W.2d 797; Horne v. Harwell, CCA (Austin) NRE, 533 S.W.2d 450; Blair v. Blai......
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