143 Mich. 390 | Mich. | 1906
The complainant, a woman, was found guilty of a contempt for not paying certain moneys in accordance with a final decree in a divorce case, and- has appealed from an order that she pay the sum of $666.60 to Ormsby, trustee, and that, in default of such payment, she be, and remain, imprisoned in the common jail, until
A history of the proceedings is as follows: On August 27, 1904, Nelson E. Carnahan filed a bill for divorce against his wife, Minnie Carnahan, the appellant. It prayed that certain property to which Minnie Carnahan had the legal title be declared a trust in favor of Nelson Carnahan. No service of the subpoena was had on Minnie Carnahan, and apparently the case went no further. On September 1, 1904, Minnie Carnahan filed a bill for divorce and alimony against Nelsofi. E. Carnahan. He answered and filed a cross-bill, by which he attempted to make his former bill a part of his cross-bill by reference. The case was heard on pleadings and proofs in December, 1904, and Minnie Cárnahan testified that she had on deposit in Sarnia $1,200, being the amount of' an insurance upon property earned by Nelson. The court thereupon made an order in open court restraining her- from transferring, assigning, or otherwise disposing of the same, until the determination of the cause, or the further order of the court. On December 22, 1904, a decree was made granting a divorce to Minnie Carnahan, adjudging that she had in her possession or under her control $644, which in justice and equity is the property of Nelson Carnahan, being the sum found by the court as an equitable property settlement between them, and it was therein ordered that Minnie Carnahan turn over and pay to the said Nelson Carnahan, or his solicitors, the said sum, and, it appearing that she had said sum on deposit in the Lamb-ton Loan & Investment Company of Sarnia, Canada, that within 20 days from the signing of the decree she give to said Nelson or his solicitor a check upon said company, authorizing and directing it to pay and turn over said sum to Nelson Carnahan or his solicitor. This decree was enrolled January 10, 1905. On July 24, 1905, Nelson E. Carnahan’s solicitor filed a precipe for execution, and it was issued, and the same has not been returned unsatisfied. The appellant claims that the records in the office of
The following claims of counsel show the questions to-be considered:
(1) That in the divorce case the court had no jurisdiction to decree that the wife should turn over property to-the husband, and to the extent that it required it the decree was void, and does not support the contempt proceedings.
(2) An outstanding execution precludes proceedings for contempt.
(3) That there is a misjoinder, for the reason that the-trustee in bankruptcy is not jointly interested with Mr. Carnahan in the decree.
(4) That the trustee claims by assignment, and his. claim is simply one of debt.
(5) This is a proceeding to enforce a civil remedy, and for that reason is a civil action, and the law does not permit a woman to be imprisoned in such a case.
(6) The evidence offered to prove that Ormsby was appointed, and had qualified, as trustee, was not admissible.
(7) The demand made was legally insufficient.
(8) The court has not found that Ormsby has suffered injury by reason of the alleged misconduct.
(9) That there was no evidence indicating that the right® of Carnahan were impaired, impeded, or prejudiced, and that he had suffered loss and injury by the alleged misconduct.
(10) There is no evidence to support the finding.
(11) The order is void because the period of commitment is indefinite.
“(468) Sec. 63. ' The court may enforce performance of any decree, or obedience thereto, by execution against the body of the party against whom such decree shall have been made, or by execution against the goods and chattels, and in default thereof, the lands and tenements of such party; but no execution shall be issued on any final decree, until the same shall have been enrolled, as hereinbefore provided.”
This is an old statute, being section 3517 of the compilation of 1857. It has been the settled rule in this State that, where execution may issue to collect a decree for the payment of money, the proceeding by contempt to enforce a civil remedy cannot be resorted to. See Haines v. Haines, 35 Mich. 138; North v. North, 39 Mich. 67; Swarthout v. Lucas, 103 Mich. 494. We have no doubt that such is now the rule, except as it is modified by 3 Comp. < Laws, § 10891, subd. 3, and in construing that section we must harmonize the last provision of subdivision 3 — i. e., “ And for any other disobedience to any lawful order, decree or process of such court,” with the earlier provision permitting contempt proceedings on decrees “ for the nonpayment of any sum of money * * * in cases, where by law, execution cannot be awarded ” — and if we must say that this is a decree for the payment of money, in the sense of the term there used, this remedy is not appropriate.
As already indicated, this decree should be interpreted as deciding that upon a settlement of the question of alimony the court has determined how the property of the husband or that in which he has an interest with his wife shall be divided between them. It has been found, and adjudicated, that of this property she has in her control, beyond the jurisdiction of the court, on deposit, the amount,
“ (10342) Sec. 45. No female shall be imprisoned on any process in any civil- action except in actions for the violation of any of the provisions of an act entitled ‘ An act to prevent the manufacture and sale of spirituous or intoxicating liquors as a beverage,’ the same being chapter sixty-nine of the compiled laws of eighteen hundred and seventy-one, in which action she shall be liable to the same punishment as a male.”
“ No person shall be imprisoned for debt arising out of or founded on a contract express or implied, except,” etc. .Const, art. 6, § 33.
In addition to the statute heretofore mentioned is the following:
“(9553) Sec. 1. No person shall be arrested or imprisoned on any civil process issuing out of any court of law, or on any execution issuing out of a court of equity, in any suit or proceeding instituted for the recovery of any money due upon any judgment or decree founded upon contract, or due upon any contract expressed or implied, or for the recovery of any damages for the nonperformance of any contract.
‘ ‘ (9554) Sec. 2. The preceding section shall not extend to proceedings as for contempts to enforce civil remedies; nor to actions for fines, penalties, or forfeitures, or on promises to marry, or for moneys collected .by any public officer, or for any misconduct or neglect in office, or in any professional employment.” 3 Comp. Laws, §§ 9553, 9554.
If the statute first cited is to be applied literally, and no woman can be imprisoned, as a means of enforcing civil rights, the court of chancery, is powerless to enforce trusts against female trustees, the delivery of securities or other property, or obedience to injunctions, if not the production of testimony, and litigants are at the mercy of women who may refuse obedience to the judgments of courts of justice. We think that substantial rights such as these were not within the intent of the legislature in giving immunity from imprisonment on civil process, which may reasonably be held to be limited to writs of capias ad respondendum, ad satisfaciendum, and kindred process. Counsel for the complainant cite no authorities except the statutes, and we assume, therefore, that a search for others has been unavailing. If the question has been decided in this court,
“(10913) Sec. 23. When the misconduct complained ■of consists in the omission to perform some act or duty, which is yet in the power of the defendant to perform, he shall be imprisoned only until he shall have performed ■such act or duty, and paid such fine as shall be imposed, ;and the costs and expenses of the proceedings.”
Such oases are not covered by section 10915. See People v. Jones, 33 Mich. 303; Wilcox Silver Plate Co.
We find nothing in the record that warrants a reversal of the order, and the same is affirmed, and the case remanded that the same may be enforced.