Wright v. Wright
| Decision Date | 16 April 1937 |
| Docket Number | 29955. |
| Parties | WRIGHT v. WRIGHT. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Where an action for contempt of court is brought to this court upon a petition in error, we will not examine the alleged errors, where it does not appear that a motion for a new trial was presented to the trial court.
2. In such a case, this court will only examine the record to determine if the pleadings are sufficient to confer jurisdiction on the trial court to make the order complained of.
3. While in an action for a civil contempt of court the strict rules applicable to criminal cases do not apply, the affidavit must contain allegations which, if admitted or proved, constitute the offense complained of.
4. Alleging the order of court and the defendant's failure to comply therewith, without an allegation that the defendant had sufficient ability to comply with the order and that his failure to do so was without just cause and wilful, is not sufficient to confer jurisdiction upon the court to punish him for contempt.
Error to District Court, Otoe County; Livingston, Judge.
Action by Blanche Wright against William Wright. To review the judgment, the defendant brings error.
Reversed and dismissed.
Husband's willful and contumacious refusal to pay alimony awarded in divorce action for support of children without just or reasonable grounds notwithstanding ability to pay constitutes " civil contempt."
Andrew P. Moran and O. G. Leidigh, both of Nebraska City, for plaintiff in error.
Lloyd E. Peterson, of Nebraska City, for defendant in error.
Heard before GOSS, C. J., ROSE, GOOD, DAY, PAINE, and CARTER, JJ and CLEMENTS, District Judge.
This action was brought in the district court for Otoe county to punish the plaintiff in error, hereinafter called the defendant, for an alleged contempt of court based upon his failure to pay into court for the support of his minor children the sum of $10 a month for each child or a total of $20 a month. This order was made in an action brought in the district court for Otoe county wherein defendant in error hereinafter called the plaintiff, was granted a divorce from defendant.
The action was instituted by the filing of a motion and affidavit, as follows:
" Comes now Blanche Courtney, formerly Blanche Wright, the defendant in the above-entitled cause, and respectfully shows to the court that heretofore on February 23, 1928, she recovered a judgment in the district court for Otoe county, Nebraska, against the plaintiff for payment of the sum of $20 per month, support money for William Wright and Nina Wright, the minor children of the above-named plaintiff and defendant, and costs taxed in the sum of $5; that no part of said judgment has been paid except the sum of $20 which was paid by the defendant on the 1st day of July, 1929; that on the 24th day of June, 1936, defendant caused an execution to be issued out of the district court for Otoe county, Nebraska, and the same was delivered to Carl Ryder, sheriff of Otoe county, Nebraska, for service and return according to law, which said execution was by said sheriff on June 24, 1936, returned wholly unsatisfied for want of sufficient property belonging to the plaintiff whereof to levy and collect said judgment.
Defendant therefore moves the court that an order be entered herein fixing the time within which the plaintiff may show cause why he is not in contempt of court for failure to pay said judgment as provided by said decree entered herein.
In support of this motion, there is attached hereto and marked exhibit ‘ A' the affidavit of the defendant.
| State of Nebraska,) |
| )ss. |
| County of Otoe.) |
Blanche Courtney, formerly Blanche Wright, being first duly sworn, on oath says that she is the defendant in the above-entitled cause; that heretofore on February 23, 1928, she recovered a judgment in this action against the above-named plaintiff, William Wright, for payment of the sum of $20 per month, support money for William Wright and Nina Wright, the minor children of the above-named plaintiff and defendant, and costs taxed in the sum of $5.
That as shown by the records and files herein, the defendant, on June 24, 1936, caused an execution to be issued out of the district court for Otoe county, Nebraska, and the same was delivered to Carl Ryder, sheriff of Otoe county, Nebraska, for service and return according to law, and that on said date of June 24, 1936, said execution was returned wholly unsatisfied for want of sufficient property of said William Wright whereof to levy and collect said judgment.
That no part of said judgment has been paid except the sum of $20 which was paid by the plaintiff on July 1, 1929.
Blanche Courtney, formerly
Blanche Wright.
Subscribed and sworn to before me this 26th day of June, 1936.
(Seal) My Com. Exp. Nov. 28, 1940.
No other complaint was filed and no answer was interposed. Upon the motion and affidavit an order to show cause was entered. Upon the return day of the order, a trial was had resulting in a finding by the court that no cause had been shown why the plaintiff in error was not in contempt of court, finding that he was in contempt of court and ordering him confined in the county jail of Otoe county until further order of the court or until he is otherwise legally discharged and that he pay the costs of the proceeding.
To this finding the defendant excepted and brings the case here by petition in error. In this petition in error numerous assignments of error are made. It does not appear that these alleged errors were ever called to the attention of the trial court by a motion for a new trial.
It is well settled in this jurisdiction: " In order to secure a review in this court of alleged errors occurring at the trial, such errors must be pointed out in a motion for a new trial, addressed to the district court, and a ruling obtained...
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