232 P. 895 | Idaho | 1924
This is an original proceeding for writ of review. Plaintiff and defendant Josephine Hay are husband and wife. The other defendant, W.F. McNaughton, is district judge, whose orders are the subject of this proceeding. Josephine Hay will be referred to herein as the defendant and the judge will be referred to as the defendant judge. On May 21, 1924, plaintiff and defendant entered into a written agreement called a marriage settlement, by which they purported to divide the community property. Defendant received some real estate in San Francisco, and an automobile and plaintiff agreed to pay her $9,000. Of this $2,000 was paid in cash, $3,000 was later deposited to her credit in the First National Bank of St. Maries, and the balance of $4,000 was to be paid not later than July 21, 1926. Plaintiff got certain real estate. Each party agreed that the share of property received by him or her should be in full satisfaction of all rights in the community property, and defendant agreed to release plaintiff from all future claim for support and maintenance. It was further agreed that this contract should be incorporated into any decree of divorce which might be obtained by either of them. The contract also contained a provision that plaintiff should have custody of Lucille June, the adopted daughter of plaintiff and defendant. Subsequently plaintiff brought an action against defendant on the ground of cruel and inhuman treatment, in which he asked for a divorce, for a confirmation of the property settlement and for custody of the child. The defendant made a general appearance by demurrer. She then made an application to the court for an order requiring plaintiff to pay her reasonable suit money and attorney fees, for an order restraining plaintiff from encumbering, selling or otherwise disposing of any personal or real property in his possession, and for an order giving her custody of the child during the pendency of the action. Her application was supported by *166 affidavits. Plaintiff filed affidavits in opposition thereto. In her affidavit she stated, among other things, that, before the property settlement was made, plaintiff misrepresented the amount and value of the community property, that he caused the father of the child to institute an action in the probate court to obtain her custody and informed defendant that if she did not agree that he might have the custody of the child he would advise the court to take the child from them and deliver it to her father, but if she would sign the agreement giving him the custody of the child he would keep her in their home and defendant would have supervision over her. She also alleged that he falsely accused her of infidelity and drove her from their home at the point of a revolver and that, by reason of all these facts, she was ill in body and mind when she signed the agreement. She contends that she was induced to sign it by fraud and duress. She did not file an answer or cross-complaint directly attacking the agreement. Upon the hearing of the motion the court made three separate orders. The first one ordered plaintiff to pay defendant $1,000 attorney fee and $500 suit money. It provided among other things:
"It is further ordered, that the said amounts of $1,000 and $500 may be paid by the plaintiff from the funds deposited by this plaintiff in the First National Bank of St. Maries, Idaho, to the credit of defendant herein, said money to be paid by the plaintiff upon defendant's giving to plaintiff and to said bank a receipt for said amount, said receipt to be signed by said defendant or by defendant's attorneys.
"It is further ordered, that the balance of said funds, deposited in said bank by plaintiff to defendant's credit, be held in said bank, and that plaintiff and defendant are enjoined both, from using or disposing of said funds, pending this action or until the further order of this court."
The second order enjoined plaintiff from encumbering, selling or otherwise disposing of any of the real or personal property of plaintiff and defendant pending the action. A third order provided that defendant should have the custody of the child during certain hours on certain days of *167 the week, and plaintiff should have her custody at other times. September 15, 1924, defendant applied to the district court for an order citing plaintiff to show cause why he should not be adjudged in contempt for failure to comply with the order that he pay her $1,500 attorney fee and suit money. The principal affidavit in support of the application for a citation was made by one of defendant's attorneys. It alleged that the money had not been paid, that, on the hearing, the district judge prepared an order for the signature of both plaintiff and defendant running to the First National Bank of St. Maries requiring it to pay defendant or her attorneys the sum of $1,500 in accordance with the order of the court; that defendant's attorneys requested plaintiff's attorney to obtain his signature to the order, and that said attorney agreed to see plaintiff and try to get him to sign the same, that this request was repeated several times but that plaintiff did not sign it. This principal affidavit is accompanied by three others in which it is alleged that the plaintiff stated he would not pay the money. Plaintiff filed counter-affidavits in which he sought to establish that defendant was better able to pay her own costs than he was able to pay them, and set up that the money in the bank at St. Maries belonged to defendant, and was entirely beyond his control. He also contended the court had no jurisdiction because defendant's affidavits failed to allege that the court's order was served upon him or that any demand had been made on him to comply with it. After a hearing the court found that plaintiff was able to comply with the order for payment of the money and had refused to do so, adjudged him in contempt, and committed him to jail until he complied with it, such imprisonment not to exceed thirty days. Plaintiff thereupon sued out a writ of review in this court in response to which the entire record has been sent up for the purpose of reviewing the four orders of the district court above mentioned, to wit, the order for suit money, the restraining order, the order in regard to the custody of the child, and the order committing plaintiff for contempt. Defendants have moved to *168 quash and dismiss the writ on the ground that it appears the trial court did not act without or in excess of its jurisdiction.
We will first consider the scope of the writ of review. C. S., sec. 7249, provides:
"Sec. 7249. The review upon this writ cannot be extended further than to determine whether the inferior tribunal, board or officer has regularly pursued the authority of such tribunal, board or officer." (Gunderson v. District Court,
However, the evidence may be examined under the writ of review for the purpose and to the extent of determining whether or not the facts necessary to give the inferior tribunal jurisdiction existed, as agreed by Mr. Justice Rice in his concurring opinion and Mr. Justice Budge in his dissenting opinion in Neil v. Public Utilities Com.,
"On a writ of certiorari to review a judgment punishing petitioners for contempt, the supreme court cannot review the evidence in so far as it affects or applies to the merits, but only to ascertain whether there was proof of jurisdictional facts, without which the court had no power to punish for contempt." (Strain v. Superior Court,
In any proceeding, and particularly in a contempt proceeding where one's liberty is at stake, the court should, on writ of review, inquire whether there was any evidence of the jurisdictional facts. Otherwise a judge could, on the mere charge of contempt committed outside the presence of the court, commit a person to jail without any evidence. *169 Since all four orders of the court are the subject of this review we will consider them in the following order.
Defendant argues that the order for suit money and attorney fee is not the subject of a writ of review because it is appealable. It is not itself appealable. (Crosslin v. Crosslin,
As to the order restraining plaintiff from alienating, encumbering or disposing of the property, that order is appealable. (C. S., sec. 7152; Dougal v. Eby,
As to the order concerning the custody of the child,pendente lite, the matter was addressed to the sound discretion of the lower court. (C. S., sec. 4643; Donaldson v. Donaldson,
We come now to the contempt proceeding. Where the alleged contempt occurs outside the presence of the court, the affidavit is the complaint and must set forth acts which constitute a contempt. (C. S., sec. 7385; Harkness v. Hyde,
It is equally clear from the entire record that the defendant judge found plaintiff guilty of contempt and committed him to jail because he failed to comply with the above provision of the order, which we conclude was in excess of the court's jurisdiction. This is clear from the affidavit which is the basis of the proceeding and from the recitals of the judgment. Then, too, since the order for suit money was the basis of the judgment for contempt and we find it necessary to reverse that order, the judgment for contempt falls with the order on which it is based. Accordingly we conclude that the judgment for contempt must be reversed.
To sum up, defendant's motion to quash the writ of review is granted as to the restraining order and the order touching the temporary custody of the child. Defendant's motion to quash the writ of review is denied as to the order for suit money and the judgment of contempt. The orders for suit money and the judgment for contempt are annulled. The case is remanded to the district court for further proceedings in accordance with the views herein expressed. No costs are awarded.
Budge, William A. Lee and Wm. E. Lee, JJ., concur. *173