99 Kan. 727 | Kan. | 1917
The opinion of the court was delivered by
This is an appeal by Frank M. Barton from a decision made January 14, 1916, adjudging him guilty of contempt in willfully failing to make payments for expenses and the support of a minor child, decreed in a divorce action against him on April 27, f 914. The decree provided that the defendant should pay $75 by October 1, 1914, $100 by April 1, 1915, and $75 on the first days of October and April of each year thereafter. No part of these payments was ever made, and at the instance of the plaintiff the defendant was attached for contempt.
On this appeal he insists that the contempt feature of the proceeding is criminal in its nature and should have been prosecuted in the name of the state by the county attorney .or attorney-general. The primary object of the proceeding was to protect private rights; that is, to compel compliance with the decree of the court rendered in a civil action, and only incidentally to vindicate the authority of the law. While the punishment of such contempt takes on a criminal phase, it is really remedial in character and is sometimes designated as a civil contempt. (O’Brien v. The People, 216 Ill. 354; The People ex rel. Negus v. Dwyer, 90 N. Y. 402; King et al. v. Barnes, 113 N. Y. 476; People ex rel. Stearns v. Marr, 181 N. Y. 463.) Sometimes the proceeding is treated as a part of the case out of which the contempt arises, and in others it is treated as an independent proceeding; but, however it may be entitled, the proceeding may be instituted by the aggrieved party in the original cause where its purpose is to protect and enforce the private rights of parties litigant. (Cunningham v. Mortgage Co., 57 Kan. 678, 47 Pac. 830; 9 Cyc. 35.) The form of tlie proceeding is not of great consequence where the defendant, as here, had reasonable notice of the proceeding and was given a fair opportunity to explain and defend against the charge of contempt.
The principal contention is that the evidence in the case does not sustain the ruling of the court that the defendant