Edmonson v. Ramsey

84 So. 455 | Miss. | 1920

Lead Opinion

Sykes, J.,

delivered the opinion of the court.

The appellee, M K. Ramsey, presented a petition for a writ of habeas corpus to the circuit judge of the Twelfth judicial district. In this petition he claims that he is being illegally deprived of his liberty by A. E. Harbison, sheriff of Forrest county, and was by the sheriff incarcerated in the county jail; that a person styling herself Mrs. Carrie Hartziog Ramsey lately instituted a proceeding for a divorce in the chancery court of F'orrest county against the petitioner,' averring among other things in her bill of complaint that tho relator was her husband and that she was entitled to a decree annulling and dissolving the alleged bonds of matrimony existing between them; that, on final hearing, the chancery court undertook and pretended to adjudicate that relator should pay to Carrie Hartzog Ramsey the sum of seventy dollars a month for an indefinite length of time, for her support, and also stipulating! and providing in said pretended decree that the support money should begin the 1st of October, 1919, and at the same time requiring relator to execute a writing obligatory whereby he was to bind himself and his sureties for the payment of the alimony; that, while petitioner was in no respect in contempt of court, a¡ writ was issued and placed in the hands of the sheriff commanding the sheriff to immediately arrest petitioner and place him in jail until he executed the bond. Petitioner avers that he is without property or means, and that it is impossible for Mm to make the bond required by the decree of the chancery court, and that unless his petition is granted he will probably die in jail or spend the balance of his life there.; that he is incarcerated in utter violation of the constitutional inhibition that there shall be no mprisonment for debt; that he igi also incarcerated for his inability to aive the security that the pretended decree calls for. ■ He prays for a writ of habeas corpus directed to Harbison, sheriff; commanding him to produce his body and to obey the orders and judgments of the court.

The writ was duly issued, and the sheriff Harbison in his answer admitted that Ramsey was incarcerated in the county jail of Forrest county, but denied that he was illegally deprived of his liberty. He alleged that petitioner was held in jail upon a writ issued out of the chancery court of Forrest county based uuon a decree rendered by that court authorizing the issuance of the writ. A copy of the decree is attached to the answer of the sheriff. The sheriff prays in his answer that the petition be- dismissed and that Ramsey be returned to his custody as sheriff. The decree of the chancery court made an exhibit to the answer, dissolved the bonds of matrimony theretofore existing between Mrs. Carrie Hartzog Ramsey and N. K. Ramsey, and gave to Mrs. Ramsey the custody of their infant child and decreed that the defendant pay to Mrs. Ramsey as permanent alimony the sum of seventy dollars a month; the first installment thereof to be paid on the 1st day of October, 1919. The decree also contains this provision:

“And it further appearing to the court from the testimony in the case that the said defendant, N. KL. Ramsey, has expressed his intention to leave the jurisdiction of the court and had threatened to do so, and that there is danger of his leaving, the jurisdiction of the court without paying said alimony, together wth the additional sum of twenty-five dollars which was and hereby is decreed to said complainant for solicitor’s fees; it being the opinion of the court that said defendant ought to be required to enter into bond for the payment of said alimony including said attorney’s fees and that a bond in the penalty of one thousand dollars signed by an indemnity company duly authorized to do business in the state of Mississippi or by two or more good and sufficient sureties to be approved by the clerk of this court conditioned for the prompt payment of said alimony as herein ordered and decreed — it is accordingly ordered, adjudged," and decreed by the court that said defendant, N. K. Ramsey, be and he hereby is required to enter into, execute, and file in this cause a good and sufficient bond in the penalty of one thousand dollars, ■ signed by good and sufficient sureties of a surety company to be approved by the clerk of this court conditioned for the payment according to the terms in this decree of the said alimony herein adjudged against him, and that said defendant be and he hereby is committed to the county jail of Forrest county, there to be kept until the entering, execution of, and the filing and approval of such bond, or until the further order of the court, and that said defendant be and he hereby is taxed with' all costs of court. For all of which let proper writs, process, and execution issue, including a warrant for arrest of said defendant and a mittimus for his oonnnitment to jail in default of bond as herein required.

“It is ordered and decreed by the court that jurisdiction hereof be retained so as to .enable the court at any time justice may require to alter or modify the terms and conditions of this decree.”

The cause was heard on these pleadings and the exhibit to the answer. The circuit judge held that the part of the decree committing Ramsey to the county jail until he executed the bond required by the decree was in excess of the authority of the chancry court and constituted no sufficient warrant- or authority for the imprisonment of relator, and he discharged the relator from custody. The judgment granted the sheriff an appeal to this court.

ON MOTION TO DISMISS.

The appellee, Ramsey, has filed a motion to dismiss this appeal, in which he alleges that the sheriff has no right to appeal from a judgment in a habeas corpus proceeding. Section 36, Code of 1906, section 11, Hemingway’s Code, provides that: “Any party aggrieved! by the judgment on the trial of a habeas corpus shall have an appeal to the supreme court.”

So the question here to be decided is whether or not the sheriff is a party aggrieved by the judgment of the court. That he was a necessary party to the proceeding is beyond question. The prisoner was in his custody by virtue of the decree of the chancery court. It was his duty as sheriff to care for and maintain this prisoner and to keep him in custody until further order of that court. By the petition in this case he was called upon to answer explaining why he had the relator incarcerated in jail. In his answer he justified this incarceration hy exhibiting the decree of the chancery court. The circuit judge decided adversely to the contention of the sheriff, holding dn effect that the sheriff had no right to keep this man in jail because that part of the decree so ordering was in excess of the power of the chancery court and therefore null and void, and this judgment ordered the sheriff to release the prisoner from his custody. When this judgment was entered, the sheriff was then in this predicament. He was first ordered by the chancery court, a court of equal dignity with that of the circuit or habeas corpus court, to hold this prisoner until further orders of the court. He was later ordered by the circuit judge, exercising the powers conferred upon him by statute in cases of this kind, to release this prisoner, because the order under which he was imprisoned was void. As the custodian of the prisoner with the two conflicting orders in his hands, he was certainly officially interested in knowing whether or not he was entitled to the custody of this prisoner and in knowing whether or not the order of the chancery court was void. We think an understanding of the facts of the case, when considered in connection with the above statute, is sufficient to settle the question of the right of the sheriff to prosecute an appeal. The right of one sheriff to sue out a writ of habeas corpus against another sheriff was upheld by this court in the case of Wray v. Kelly, 98 Miss. 172, 53 So. 492. In that case the aggrieved sheriff presecuted an appeal to this court and was by judgment of this court given the custody of the prisoner. Th.e exact point here was not expressly made, however, in that case.

In the case of State v. Gordon, 105 Miss. 454, 62 So. 431, an appeal from a habeas corpus decision was prosecuted both in the name of the state and of the sheriff. In the opinion on a motion to dismiss, the court held that habeas corpus proceeding's are civil and not criminal in their nature. We quote, from page 466 of 105 Miss., page 432 of 62 So., of the opinion:

“On the contrary, it is a new; suit, brought by himi to enforce a civil right which he claims as against those who are holding him in custody under the criminal process. If he fails to establish his right to his liberty, he may be detained for trial for the offense; but if he succeeds he must be discharged from custody. The proceeding is one instituted by himself for his liberty, not by the government to punish him for his crime.”

This quotation is taken from the opinion in the case of Ex parte Tom Tong, 108 U. S. 556; 2 Sup. Ct. 871, 27 L. Ed. 826, which cites a number of cases sustaining it. Among these cases is that of State v. Huegin, 110 Wis. 189, 85 N. W. 1046; 62 L. R. A. 700. In this Wisconsin case in speaking of the sheriff it is said: “That the relator (sheriff) here is a party aggrieved within the rule stated it seems is quite clear.”

In the latter part of this opinion we find the following: “The adverse party on the record was the sheriff. He was to all intents and purposes the defendant in the proceeding, regardless of the name by which such a party is commonly known.”

Our conclusion is, which is borne out by the above authorities, that the sheriff is a necessary party to a proceeding of this kind; that in his official capacity he is interested in the result of the judgment of the court; and that under this statute he is an aggrieved party who has a right to appeal to this court. Since this appeal was effected, Mr. Harbison’s term as sheriff of Forrest County has expired, and on motion, under section 727, Code of 1906, section 510, Hemingway’s Code, the suit has been revived and is now being prosecuted in the name of Mr. W. M. Edmonson, his successor.

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Opinion on the Merits

On the Merits.

The sole question presented to us upon the merits of this controversy is whether or not that part of the decree of the chancery court committing Ramsey to the custody of the sheriff until he made the required bond for the pay.ment of.the alimony is void; or, to express it in different language, did the court have power to order this man into the custody of the sheriff until this bond was made? Section 1673, Code of 1906, section 1415', Hemingway’s Code, provides among other things that: “The court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders . . . touching the maintenance and alimony of the wife, or any allowance to be made to her, and may, if need be, require sureties for the payment of the sum so allowed; and the court may afterwards, on petition, change the decree ... as the case may require. ”

It cannot be disputed that one who contumaciously refuses to pay alimony decreed biy.the chancery court may be imprisoned by that court for a contempt. This proposition is not denied. Two of the late cases dealing with it are Hamblin v. Hamblin, 107 Miss. 113, 65 So. 113, and Millis v. State, 106 Miss. 131, 63 So. 344. In these cases, however, the recusant party was formally cited for contempt. It is also- to be borne in mind that our chancery courts have power to issue the equitable writ .of ne exeat república even before an award of alimony, when a proper charge is made to the court that the defendant is about to leave the state or that he has said that such was his purpose. Under this proceeding, he may be required to execute a bond with sufficient sureties, conditioned not to leave the state, or as security for the payment of the ^alimony which may be adjudged against him. 1 R. C. L. 888; Bronk v. State, 43 Fla. 461, 31 So. 248, 99 Am. St. Rep. 119. The object of the writ of ne exeat is to detain the person of the defendant in order to compel him to perform the decree of the court in those eases where his departure would endanger the rights of the complainant of prevent the effectual enforcement of the order of the court. We have been unable to find any reported cases in this coutt where this writ was used. That the chancery court has the power to enforce its decrees goes without saying. In the case of Watson v. Williams, 36 Miss. 331, in the opinion it is said:

“The power to fine and imprison for contempt, from the earliest history of jurisprudence, has been regarded as a necessary incident and attribute of a court, without which it could no more exist than without a judge. It is a power inherent in all courts of record, and coexisting with them by the wise provisions of the common law. A court without the power effectually to protect itself against the assaults of the lawless, or to enforce its orders, judgment, or decree against the recusant parties before it, would be a disgrace to the legislation, and a stigma uipion the age which invented it. ”

This court had the power to commit the defendant Ramsey to jail for contempt of court under proper proceedings. It likewise had the power under proper proceedings to have issued the writ of ne exeat república. The lawmakers in enacting section 1673', supra, were aware of these powers. In this section they gave the court the right to require the defendant to give bond for the payment of alimony. It must be assumed that in the divorce proceedings the court necessarily on the hearing adjudged that the defendant was able to give the bond required of him. From the decree it will also be seen that the court found that this man expected to evade the order of the court and leave its jurisdiction. This fact was adjudged by the decree of the court. Under these circumstances was the court powerless to remand this man to the custody of the sheriff until he had executed a bond which he was perfectly able to do? The court had the power in this case to do directly that which it could have done either by proceedings in contempt or by proceeding’s for the writ of ne exeat. The statute expressly gives it the right to require this bond of defendant. It has the inherent right to enforce its orders, judgments, or decrees. In; this case the court found that the only way it could require the defendant to obey its orders was to remand him to the custody of the sheriff until the bond was executed. As is aptly stated in the ease of Pain v. Pain, 80 N. C. 322:

“Without the ability to compel obedience to its mandates, . . . many of its most important and useful functions would be paralyzed.”

If the court were powerless to coerce the defendant to execute the bond by committing him to the custody of the sheriff until he did so, then it .would be powerless to coerce a defendant to obey its valid order. It would therefore follow that this part of the above section of the Code would be ineffectual and inoperative because of the lack of power ofi the court to enforce it. Such is not the law.

The decree of the chancery court was valid and binding upon the defendant Eamsey, appellee in this case. The judgment is reversed, and the petition dismissed.

Reversed, and petition dismissed.