Opinion
[Syllabus Material] [Syllabus Material] Rehearing Denied
18 Cal. 60 at 64.
Application to the Supreme Court for a writ of habeas corpus.
R. G. Perkins, the relator, brought suit in the Third District against Elizabeth Perkins, his wife, for a divorce, on the ground of wilful desertion. She answered, denying such desertion, and averring extreme cruelty on the part of plaintiff toward her and their minor children, which compelled her to leave his home with said children and live with an elder son, who has supported her; and also wilful neglect to provide for her and the children the common necessaries of life, for three years, having the ability to provide the same, and praying for a divorce and division of the common property, alleged to be about $ 50,000, and also for an order requiring plaintiff to pay defendant five hundred dollars for counsel fees and costs, and two hundred and fifty dollars per month for the support of herself and said minor children during the suit. November 27th, 1860, before the case was tried, defendant moved the Court on affidavits--plaintiff filing counter affidavits--for an order directing plaintiff to pay defendant the counsel fees, etc., as prayed in her answer; and the Court, after hearing the motion, " ordered, adjudged, and decreed that said plaintiff pay to the said defendant the sum of four hundred dollars for counsel fees in this behalf, for her defense in said action, within ten days from the date of this order, and that, in default of the payment of the said sum of four hundred dollars, according to this order, then defendant have a writ of sequestration against the property of said plaintiff to make such sum, or such other relief as may be according to law."
The case was then tried before a jury; and issues being submitted involving the charges made in the complaint and answer, they were found against plaintiff and in favor of defendant; and a decree was accordingly rendered, on the third of December, 1860, denying plaintiff's prayer for divorce, but granting a divorce as asked by defendant, ordering an equal division of the common property, and giving the custody of the minor children to defendant. December 14th, 1860, a copy of the above order, requiring plaintiff to pay four hundred dollars counsel fees, was served on him, and demand made by defendant's agent and attorney for the money, and payment thereof refused. On the nineteenth of March, 1861, defendant moved for attachment against plaintiff for contempt in refusing to obey said order--the motion being based on affidavits setting forth the foregoing facts, and also that plaintiff is worth about $ 50,000, and is abundantly able to pay. Whereupon the Court issued a rule on plaintiff to show cause, on the twenty-sixth of March, why he should not be committed for contempt in refusing to obey the order to pay the counsel fees. On that day, after hearing the parties, the Court adjudged that plaintiff was guilty of contempt in refusing to pay said money; that he had still the power to pay it, and that he be imprisoned in the common jail until he pay the same. A warrant of commitment was issued, under which the Sheriff of San Francisco, where plaintiff lived, took him into custody.
Plaintiff now applies to the Supreme Court for a writ of habeas corpus, averring that the warrant of commitment and plaintiff's imprisonment thereunder are illegal, because: first, the facts recited in the warrant do not constitute a contempt; second, the judgment of contempt, as set forth, is coram non judice, and hence the warrant of commitment is void; third, it does not appear that petitioner had his day in Court, either on a rule to show cause or attachment against his person, and hence the warrant does not show jurisdiction over the person of petitioner, and that nothing appears on the face of the writ to justify the arrest or detention of petitioner, and the same is against the constitution of this State and of the United States; fourth, the warrant of commitment does not show the pendency of such a suit as would give jurisdiction to the Court over the person or subject matter of the contempt.
The writ was issued and made returnable before the Supreme Court. The Sheriff of San Francisco returned that he had petitioner in custody under the warrant of commitment from the Third District Court. To this return petitioner answered, setting up, among other things, that no demand for the payment of the counsel fees was ever made by defendant in person, nor was any written order for such payment ever presented, and that defendant was not therefore entitled to a judgment of default against plaintiff in accordance with the order under which these proceedings are had, and that no writ of sequestration or execution has ever been issued; that the warrant does not show that petitioner was convicted of fraud, in which case only could he be imprisoned.
COUNSEL:
No points or brief on file, other than the above answer to the Sheriff's return.
Shields & Heslep, for Petitioner.
Byrne & Freelon, contra.
1. The judgments and orders of Courts or Judges on the subject of contempt are final and conclusive; and under the writ of habeas corpus, one Court will not interfere with the orders or judgments of another Court in such cases. (1 Kern. 324; 4 Wisc. 522; Ex parte Cohen and Jones , 5 Cal. 494; Hurd on Habeas Corpus, 410-413, et seq., and cases cited; People v. Nevins, 1 Hill, 154; Case of Yates, 4 Johns. 366, 370, 372; 1 Cal. 152; 3 Hill, 663, note 38, 661, et seq.; 25 Miss. 883; Ex parte Adams, 14 U. S.D. 114; Jordan v. State, 14 Tex. 436; Opinion of Murray, C. J., 7 Cal. 176; Baltimore and O. R. R. v. Wheeling, 13 Gratt., Va., 40; 17 U. S.D. 132.)
2. This Court grants the writ of habeas corpus as an original writ, and not in aid of its appellate jurisdiction. (Cons. Cal. art. 6, sec. 4.)
3. The Court may order counsel fees to be paid to a wife in adivorce case in which she is defendant. (Bishop on Marriage and Divorce, 571, et seq.; Mix v. Mix, 1 Johns. Ch. 108; 2 Barb. Ch. Pr. 265; Ryan v. Ryan , 9 Mo. 539; McGee v. McGee , 10 Ga. 477; Melez v. Melez, 1 Parsons, Penn., 78.)
4. The sum ordered to be paid is not a debt. (1 Burrill's Law Dic. 343; 2 Black. Com. 125; Lyon v. Lyon , 21 Conn. 185, 13 U. S.D. 131.)
5. The remedy of the party for nonpayment of money under order of a Court of Chancery, has always been by imprisonment for contempt or by sequestration. (2 Barb. Ch. Pr. 272; 2 Paige, 578; Id. 280, 698.)
JUDGES: Baldwin, J. delivered the opinion of the Court. Cope, J. concurring.
OPINION
BALDWIN, Judge
Subsequently, on the twentieth of April, 1861, petitioner applied to the Supreme Court for a writ of certiorari to the Third District Court to send up the record and proceedings in the cause, and for an order staying all proceedings upon the judgment for contempt. The petition set forth the facts as hereinbefore related, and averred, further, that, as to the order of the Court below requiring petitioner to pay the four hundred dollars counsel fees, he has lost his right to appeal; and that as to the judgment for contempt, no appeal lies; that the Court below has adjourned for the term, and therefore petitioner cannot move to vacate said order and judgment, and hence he is without a plain, speedy, and adequate remedy, unless this Court will review the proceedings of said Third District Court.
Upon this petition the Supreme Court ordered that defendant, Elizabeth Perkins, show cause why the writ should not issue. By stipulation this application was heard upon the record in the preceding application for a writ of habeas corpus, defendant also filing an affidavit not necessary to be noticed. Cope, J. delivered the opinion of the Court--Baldwin, J. concurring.
This is an application for a certiorari. The opinion delivered at the present term, refusing to discharge the applicant upon a writ of habeas corpus, is decisive of the points involved in this application.
Writ denied, and petition dismissed.