109 S.W.2d 964 | Tex. | 1937
This is an original habeas corpus proceeding instituted in this Court by J. C. Hodges as relator. The record before us is rather meager, but for the purposes of this opinion we will conclude that the record discloses:
Muriel Blue Hodges, then the wife of relator, filed suit in the district court of Hutchinson County, Texas, against relator for divorce, for partition and division of certain property alleged to be community, for attorney's fees, for alimony pending the suit, and for costs. The prayer for alimony was not presented to or acted on by the district court until after final trial and judgment in the divorce case in that court. This matter will be more fully detailed later. The case was finally tried in the district court and Mrs. Hodges was awarded a divorce from relator as prayed for in her petition. She was also awarded a judgment for $250.00 as attorney's fees and for costs, but was denied any property recovery. The above judgment recites that Mrs. Hodges excepted thereto and gave notice of appeal therefrom to the Court of Civil Appeals at Amarillo. This appeal has been duly perfected by Mrs. Hodges by filing affidavit in forma pauperis. It is alleged in relator's application that by her assignments and briefs in the Court of Civil Appeals Mrs. Hodges is not seeking to question the validity or correctness of that part of the judgment of the district court granting her a divorce. In this regard it is alleged that she complains only of the amount of attorney's fees allowed her and of the rulings and judgment of the trial court as regards the property in dispute. It is also shown that the relator has perfected no appeal from the district court's judgment, and has not complained thereof in any way.
After the district court had rendered its judgment, and after the appeal therefrom to the Court of Civil Appeals had been fully perfected by Mrs. Hodges, she, for the first time, presented her petition for alimony to the district court. On hearing, the district court granted alimony in the sum of $60.00 per month, pending the final disposition of the case. Relator failed and refused to pay such alimony as directed by the district court. *282 Mrs. Hodges complained of such refusal and, after hearing before the district court, relator was held in contempt of that court and ordered committed to jail until he shall purge himself by paying to Mrs. Hodges or to her attorneys for her all accrued alimony. Relator applied to this Court for a writ of habeas corpus and same was granted and relator released on bail. The case in this Court has been duly submitted, briefed, and argued, and is now before us for decision. The divorce case is still pending in the Court of Civil Appeals at Amarillo.
1 It is settled as the law of this State that the district court has the power to make and enforce an alimony order pending a divorce action even after an appeal from the divorce judgment has been fully perfected to the Court of Civil Appeals. Ex parte Lohmuller,
2, 3 If we properly interpret their brief and written argument filed herein, counsel for relator contend that even if it should be held as a general rule the district court can make and enforce an alimony order in a divorce case while it is on appeal — still such can not be done in this case because Mrs. Hodges is in no position to complain in the appellate court of that part of the district court's judgment granting her a divorce from relator, and further because by her assignments and brief in such appeal she has not so complained. We can not follow this line of reasoning. This is a collateral attack on the district court's contempt order, and such an attack must fail unless such order is absolutely void. To hold that such order is void would be equivalent to holding that Mrs. Hodges is not now the wife of relator. In other words, to sustain relator's contention in this regard would be to hold that that part of the district court's judgment awarding her a divorce has become final and has not been appealed from. The record before us will not sustain such a ruling. An examination of the final judgment of the district court in the divorce suit affirmatively shows that when it was entered Mrs. Hodges excepted thereto and gave notice of appeal therefrom. In other words, she excepted and gave notice of appeal from the judgment as a whole, and not as to any particular part or parts thereof. She then perfected such appeal by the affidavit already described. We do not have before us copies of the appellant's assignments or briefs in such appeal, but regardless of what they may contain, the above record certainly operated to carry the entire original case to the Court of Civil Appeals. Davis v. State, 9 Texas Crim. App. 367,
4 Relator cites, among other authorities, the case of Radford v. Radford, (Civ. App.)
5 Relator contends that the order of the district court commanding him to pay alimony, and the order of the same court holding him in contempt for disobedience of such alimony order, are each and both void because entered in vacation. In this regard relator contends that a district court, as such, as well as the judge thereof, have no power to enter contempt orders in vacation unless there is statutory authority therefor. We agree with this latter contention as a general rule. In the case at bar the district court had express authority to enter the alimony order in vacation. Article 4637, R. C. S. of Texas, 1925. We think that it is the rule supported by the better authorities that in instances where there is statutory authority to make an order in vacation which can properly be enforced by contempt proceedings, the very authority to make the original order carries with it by necessary implication the statutory authority to enforce the same by contempt proceedings begun and completed in vacation. 13 C. J., p. 53, par. 72, and notes; 6 Rawle C. L., p. 518, par. 30, and notes. Also see notes under Ex parte Looper, Am. Ann. Cases, 1913B, p. 35. *284
Relator cites the case of Ex parte Ellis,
From what has been said it is evident that we hold that where the court has express statutory authority to enter an order in vacation which can be enforced by contempt proceedings, as an incident thereto, the court also has statutory authority to enter a contempt order for a disobedience thereof in vacation. In other words, the same statute which gives the court the power to act in the first instance, by necessary implication, gives him the power in the second.
Relator is remanded to the custody of the sheriff, and it is ordered that he shall pay all costs of this proceeding. *285
Opinion delivered October 20, 1937. Rehearing overruled November 24, 1937.