Opinion
Submitted on briefs October 30, 1928
Reversed January 15, 1929
From Deschutes: T.E.J. DUFFY, Judge.
For appellant there was a brief over the name of Mr. Jay H. Upton.
For respondent there was a brief over the name of Mr. R.S. Hamilton.
IN BANC.
This is an appeal from a judgment of conviction for contempt of court. Defendant was sentenced to be confined in jail six months or until he paid the sum of $175 referee fees incurred in a divorce suit between defendant and his wife. Defendant here was defendant in said divorce suit. After taking the testimony upon the merits of the controversy the court announced its intention to grant plaintiff a divorce, but the evidence regarding defendant's property was insufficient to enable him to fix a proper amount to allow plaintiff as alimony. In order to ascertain the amount of property owned by defendant, the court appointed a referee to inquire into that matter and report to the court at a definite time. The referee filed his bill for his services with his report on the facts; the report was duly approved by the court, a decree thereupon entered granting plaintiff a divorce, awarding her one third real property belonging to defendant and $4,000 permanent alimony. No appeal was taken from that decree.
The decree of divorce was entered on the seventeenth day of February, 1928. On the fifteenth day of February, 1928, the court rendered and entered an order requiring defendant to pay the $175 referee fees. In answer to the order requiring defendant to show cause why he should not pay said sum of $175 defendant filed his affidavit to the effect that he was unable to do so because he had received no income from his business for three months and that all of his property was subject to liens; that his creditors holding said liens were managing the property and receiving all income therefrom; that he had borrowed money to pay earlier orders made by the court for the benefit of the plaintiff and to enable her to prosecute the suit. These orders were all made and entered in the divorce proceeding, all of the papers in which are brought up on this appeal. None of those papers, however, either pleadings or other documents, appears to have been introduced in the contempt proceedings. The contempt proceedings were instituted on the nineteenth day of May, 1928, by the filing of a motion supported by an affidavit of attorney for plaintiff. A warrant for the arrest of defendant was issued on the same day. The record affirmatively discloses that the order for commitment of defendant was made on the same day. No opportunity was given defendant to be heard or purge himself of the alleged contempt. REVERSED.
The only documents introduced in the proceedings to determine the question of contempt are the motion of attorney for plaintiff supported by his affidavit, the order directing the arrest of defendant and the order committing defendant, all of which are dated on the same day, to wit: May 19, 1928. Defendant was not given an opportunity to be heard upon the question of his ability to obey the order of the court directing him to pay to the court the sum of $175 for the referee. The only proceedings regarding that were had in the divorce suit. That suit is collateral to this proceeding. Defendant was adjudged guilty of contempt and ordered confined to the county jail for six months, unless he sooner paid said sum of $175. He was, in other words, adjudged guilty without a hearing or a chance to be heard. The sentence is contrary to law. A citizen cannot be imprisoned for debt in this state: Const., Art. I, § 19. He can be imprisoned for wilful disobedience of a lawful order of a court: Or. L., § 670, subd. 5, as amended by Gen. Laws 1923, Chap. 165; State v. Francis, 126 Or. 253, ( 269 P. 878, 880, par. 4). When such disobedience is not committed in the presence of the court he cannot be committed for alleged contempt without a hearing and an opportunity to present a defense: State ex rel. v. Downing, 40 Or. 309 ( 58 P. 862, 66 P. 917); State v. La Follette, 100 Or. 1 ( 196 P. 412). The contempt proceeding is separate from the divorce suit: State v. Downing, supra. The records of the divorce suit are not referred to in the affidavit charging defendant with contempt so as to incorporate them in the contempt proceedings.
Because defendant has not had an opportunity to be heard upon that charge the judgment is reversed and defendant is discharged. REVERSED.