*1 Affirmed. Howard,
Wе Harris, C.J., Holt agree. JJ. Sheriff, HENDERSON, Ralph Chancellor, DUDLEY, et al Robert H.
78-65 S.W. 2d 18, 1978 delivered December
Opinion (Division II) *4 Blair, David and H. David Hodges petitioner.
Gerald W. Carlyle, respondents. (now Cole) Stone Fogleman, A. Justice. Jeanette John suit for divorce Stone brought against Danny Chancery Court of The decree rendered in that case County. Jackson of child required Stone. payment On support Danny 7, 1977, December Stone was found to be wilful Danny for failure to chancery make child support him. payments required Upon finding, chancellor sentenced Stone to 40 but directed days jail, that he be released during day employment purposes. Stone to the A commitment was issued remanding custody Henderson, рetitioner, as Sheriff of Ralph Coun- Jackson to the ty, chancellor’s pursuant and sentence. On finding 22, 1978, Mrs. February Cole filed verified for cita- petition tion of both Stone and Henderson for that Stone had failed alleging child as directed pay support and had failed to submit himself to the Sheriff of Jackson at County night sentence and that during Hender- 40-day son had the court’s order ignored and allowed Stone to be free from from custody about December during nighttime 8, 1977 until 16, 1978. January She further that alleged Henderson had personal Stone was not knowledge only allowed to at home at being but stay night, during when he daytime was not and that Stone employed alcoholic at the drinking Glaze beverages Restaurant. This petition Chancellor presented Robert H. Dudley, presiding judge vacation, Court of Chancery County, Pocahontas, at on 1978, without February notice to Henderson and without been any process having served on him. chancellor, evidence, without hearing any *5 issued an order Henderson to in the directing appear Court of Chancery on the 13th County, day March, 1978, at cause, 10:00 a.m. to “show if any, why his failure this court for be held should not contempt ” . . . Petition- orders . the court’s refusal to obey comply on March challenging er filed a special appearance the order motion court to quash of the by jurisdiction court denied challenge, When the show cause. chancery chancellor’s by ruling peti- to overturn sought petitioner cer- mandamus and for writs of this court prohibition, tioning tiorari, in excess was court acting that the chancery alleging not entitled find that of its We petitioner jurisdiction. his writs and dismiss of the petition. sought that the made alleg- first contention petitioner constructive, been committed not ed was having contempt for court, and that punish proceeding presence an affidavit of a be initiated person such а must conduct or who witnessed contemptuous persons was no that there of it. He otherwise have argues knowledge filed to information subject affidavit or bring preliminary the trial to the attention matter of this alleged contempt that, result, the as a chancery court in this proceeding cause. the order to show had no to issue court jurisdiction State, S.W. relies Yorkv. Petitioner if from other Even York and cases applicable, jurisdictions. the result reached we do not that it mandates by peti- agree York, affidavit, of facts information or statement tioner. In no court to the as a foundation proсeedings presented that, in all cases of constructive We held merely contempt. immediate i.e., not committed contempt, not take could judicial since the court presence it was notice an offense committed outside its presence, attention matter be to the that the necessary brought before an information court affidavit or preliminary be served. The could show cause or other order to process were there quashed respondents punishing judgments affidavit without any because the chancery proceeded “or its equivalent.” in the later case CarlLeе
We noted the York holding There, 122, 143 judgment certiorari on contemnor quashed punishing alleged divided, affidavit to on the a court necessity only initiate that but on the proceeding, grounds quashing *6 however, to “the as authoritative was writ. The opinion, an first the order of the to initiate court proceeding power of the facts therein a statement record, stated or as made in In the vacation.” of record and signed judge entered we said: that respect en the accused is our
Under system procedure, to reasonable certainty titled be informed with which is — the offense charged facts constituting thereto his to make defense day and opportunity have been out kinds of court. The different procedure offenses, but the statu other lined the punishment one, be te,[1] that he shall notified as to this says only to and have a reasonable the accusation opportunity make his defense. be an accusation the accused There must before it,of and no reason the court
can be notified there is why recite matter has in session cannot that the offending order, to it in an and come its out knowledge, setting to cause. done direct citation thereon show This was Morrill, the the case of the Statе v. Court Supreme 16 Ark. notice of and was effectual the charge [ 384] an affidavit or information would have accusation as been. summons and warrant of arrest are but the accused into court answer the notify bring made him the citation in this there charges against case, it contains matter the whole although constituting which the offense with petitioner attempted be was not a of record for him to charged, charge answer, accusation the stat or an within meaning ute, vacation, issued in notice been having alone, shows, of the clerk as the so far record authority there order of no the court being authorizing citation, issuance without an order of the made out the or a statement first setting charge, thereof made of record and signed by judge *** court in vacation. which ence of the reasonable time to make his defense. It quirement as [1] merely requires The statute referred to is now the form of the party charged that, in cases of charge or the manner Ark. Stat. Ann. contempts notified of is clear that there is no committed § accusation and have a 34-903 of its (Repl. statutory initiation. 1962), pres re later, the basis that the we Yorkon
Still distinguished which that Stat. Ann. statute on based proceeding [Ark. 1962) disobediencе of j 32-401 related only injunc- (Repl. statute was tions Ark. Stat. and that CarlLee applicable 293, Ann. 34-903. See Hall *7 § Hall, we held that York not We also In controlling. CarlLee, that, 34-903 was suf- held with compliance ficient; for of an that an attachment disobedience order court the of a could issued without affidavit third person facts; for out the and that one charged contempt setting violation of court order was a not when the prejudiced alleged at- contemnor was of the basis of the in the informed charge itself, was tachment advised the facts constituting the outset of the and a con- at did hearing request chаrge tinuance. We of our that a supported logicality position affidavit from was not supporting required quoting CarlLee, as follows: a court record and
“The spectacle general initiate without to power proceed- jurisdiction being ** * without an affidavit to contempt punish ing made, out the third first setting charge, some person extreme, was not con- would be pitiful and under our Constitution. our statutes templated be rendered The court would thus impotent, powerless re- mandates and its and enforce its authority, protect whose confidence of the tain the people, respect еxists, it was grace benefit except organized third of some person.” Hall, had, to the decision
We
expressly recognized
prior
lor
to initiate the
of a chancellor
adjudica-
power
process
with orders of the court
tion of
failure
comply
atten-
its
citation
information coming
by issuing
upon
tion,
been filed.
Ex
formal
without
having
complaint
Ray,
State,
225;
& Wallenv.
Turk
209 Ark.
parte,
Coulter,
also,
Ex
ORDER verified On Petition of the petitioner, Jeanette Cole, Stone alleging following: (1) defendant, Stone, That has failed Danny and refused to with the Court’s Order rendered comply 7th, herein on December *8 more to-wit: particularly (a) his failure to child since the ren- pay support dition of the and Commitment on December Judgment 7th, 1977; and
(b) his failure to submit himself to the custody the Sheriff Arkansas, the County, during Jackson and to be released for nighttime only employment pur- his poses (40) sentence. during forty day jail (2) defendant, Henderson, Sheriff of Ralph Arkansas, County, has failed and refused to Jackson with the Court’s comply Order rendered herein on 7th, 1977, December more to-wit: particularly, IS, “IT THEREFORE, CONSIDERED, ORDERED AND ADJUDGED the Court that the Defendant be remanded into the of the Sheriff of custody Arkansas, and County, Jackson to be him confined in the safely County Jail, Jackson Newport, Arkansas, County, (40) forty Jackson however, days, defendant is to be released during daytime employment purposes.” [***]
(4) The defendant, Ralph Henderson, Sheriff of Arkansas, di- and ordered hereby is County, 13th on the day this in Court rected appear cause, if March, 1978, why to show any, at 10:00 A.M. his this Court be he should not held the Court’s and obey failure refusal comply to show mentioned; further orders hereinabove rea- cause, not he should be pay if why required any, for this fees and attorney’s parti- sonable sum costs cular litigation. case, in this like the attachment the order
Although Hall, on which the did not facts charge recite specific Cole, Mrs. based, refer to verified the order did petition faсts to the extent necessary petition- which did recite give Petitioner claims that er notice the charge. adequate it because was “to verification of petition inadequate case, no and belief.” In this where of her best knowledge this verification affidavit was actually adequate required, that we a statement informa- reject argument case the court of tion and belief jurisdiction deprives no where affidavit required. however, not did
Petitioner argues, petition sufficient conduct on his to constitute state part contempt, order, or that that it is that he served alleged order, violаted and that wilfully or contumaciously is no there statement of facts from which the essential inferred. dis- elements could We rationally *9 agree. one, action, true that not a to an has
It is who quite party it, order, or no not been served with an who has noticeof is held in not aware its full cannot be of the import, 325, v. 240 399 2d 680. order. Whorton Ark. S.W. We Gaspard, well if we were hold- might agree petitioner reviewing that was in without basis for that any ing finding he had notice of the order or was aware of its full But import. we in are action the trial court simply deny- reviewing a motion to the order to show cause on ing quash petitioner’s we will not writs and entertain application extraordinary Smith, v. factual 236 arise. questions Jackson 278; 366 v. S.W. 2d Little Rock Co. Distributing
707 33; Court, 24, 531 2d 259 Ark. S.W. Circuit Ouachita County 92; 2d v. Marion Wood, 418, Rastle 243 Ark. S.W. v. Patrick 2d 543 S.W. 260 Ark. District Rural School No. County 706; v. 85, 2d State 259 Ark. S.W. 923; v. Enfield, Massey is not Nelson, 210, 2d Petitioner clearly 246 Ark. S.W. in such on these the relief he seeks entitled to grounds, writs are cases these granted. extraordinary Karraz Wood, 840; 2d 535 S.W. Girley Taylor, McAllister, 200 Ark. 454; 408, 525 McAllister Furthermore, we most reluctant 2d 1040. are 138 S.W. control, the action of direct or correct to use mandamus Wood, trial courts interlocutory proceedings. Girley supra. concerned, before us are the record
Insofar as the issues that he to show had certainly adequate require pеtitioner no notice of the order and was not aware of its import. chancellor a commitment record discloses that the issued he found which this case on the same Stone day contempt, insofar as here said: pertinent IS, THEREFORE, CONSIDERED,
IT ORDERED AND the Court that by ADJUDGED of the defendant be remanded into the Sheriff custody Arkansas, and to be him con- County, safely Jackson fined in the County Jail, Newport, Jackson Arkansas, however, (40) the de- County, forty days, is to fendant be released during daytime employ- ment purposes. the duties of a sheriff are the execution process
Among directed to him attendance all courts by legal authority, held in his and the of all acts county performance required 1977). him law. 17-3601 (5) Ark. Stat. Ann. (Supp. § care, the duties him are the statute Among enjoined upon rule and and all committed charge county jail prisoners 1977). in his Ark. Stat. Ann. 46-402 Refusal county. (Repl. § lawful receive into the committed jail process person dis- misdemeanor which subjects jail keeper 1977). missal from 41-2851 office. Ark. Stat. Ann. (Repl. one detained Recklessly custody escape permitting *10 1977). also a misdemeanor. Ark. Sat. Ann. 41-2814 (Repl. § to attend at the of the sheriff It is also the statutory duty issued. his to receive office in daily any process clerk’s county 1962). 27-320 Ann. (Repl. Stat. confinement of with of a sheriff respect The duty has treated to his been committed custody lawfully prisoner 140 S.W. Ann. Cas. us in Houpt 1913c viz: The has two law
An escape separate meanings. the the other the act involves the act of one prisoner, him in When the the officer custody. prisoner having is from the his lawful away custody, escape goes place is when the allowed act prisoner; prisoner confinement, or his either leave place negligently es him in officer voluntarily, having custody, But whether the act the officer. in either event cape restrained his lib under lawful arrest and person restraint, such either his evades arrest erty through at own act or sufferance officer goes large law, com before delivered due course of an escape It is the of a sheriff to mitted. custody duty keep means committed him. prisoner lawfully custody sur him either in actual confinement or jail keeping restrain the rounded force sufficient to by physical pris or more than oner from at going large obtaining liberty walls, law allows. The its constitute may jail, confinement, force thrown place physical about the outside of the constitute prisoner jail may but, removed, when such force legal custody; it physical in an As is said in the cаse of results Wilkes escape. (N.C.) Hawkes “No moral Slaughter, obligation it, can be received a substitute for although promises remain in close be made and observed to may withdrawn, the moment and force are jail, compulsion free there is no becomes a custody, legal prisoner no In case there is agent, longer imprisonment.” Rittenhouse, Law, held it was Richardson N.J. that it was to allow a arrested voluntary escape person at his the next go large upon day promise appear bail, even surrendered give though voluntarily himself in the terms of the In case of Nall promise.
709 dis- State, 262, where a sheriff 34 Ala. it was held that a in con- his duties so negligently prisoner charged town, and went to left the adjacent sequence jail returned, moments, for a few even actually though 73 v. it was an In case of Com (Ky.) escape. Lynch 745, a it was held that when prisoner per- home it con- mitted to his go every Saturday night State, 14 it an In v. Tex. stituted escape. Luckey that when held a convict committed to was per- prison for es- mitted the sheriff at was liable go large, 596; Hale, Law, 1 2 P.C. New Cr. 1065. cape. Bishop, § In 16 is defined to be “the loss Cyc. escape before due of law of the lawful discharge by process of a whether or сustody prisoner, voluntarily negligently In suffered.” order to constitute there must be custody, control; restraint or presence physical physical lost, and when such a restraint or control there is loss even it continue custody, though may only temporari- Sheriffs, Murfree on 193 ly. §§ As is said the case of v. 79 Beard law “the does not other method hold- recognize any with crime than ing prisoner custody charged confinement in until examination trial.” If jail excep- tional cases shall arise when he must of be tak- necessity en from he must jail then temporarily, actually and surrounded such force will guarded as physical him of but him only restrain from dеprive liberty free movement withersoever he will. going also, Annot., See Ann. Cas. 1913c 694. statute
Our defines “a writ or “process” summons issued in the course of Ark. Stat. Ann. judicial proceedings.” 1962). 27-128 writ is A defined as an order or (Repl. pre- § issued clerk or officer. cept writing, judicial Process, Stat. Ann. 27-129 1962). the sense (Repl. statutes, writs, is a term which includes all comprehensive rules, orders, executions, warrants or mandates issued during action, of an even those used progress carry judgment effect, into a commitment for a criminal including prison Nevins, offense or for 1 Hill (N.Y.) v. 154 contempt. People 710 Graber, 1950); Victoriav. (D.C., 93 281 v. F.S.
(1841); Graber
Noah, 27
(1964);
711
Court,30 Ariz.
Cir., 1934);
(4
929
ex rel
State
Superior
Murphy
(1926);
There is a division of
authority upon
question
status of the
of a state
anas
officer of the court
keeper
prison
held,
cases,
and it is
in some
that he is not and consequently
he cannot be held in
im-
committing
release of one committed. See
proper
Court,
District
e.g., People
(1931).
Colo.
ministration of Without this justice. without right the to and have the power punish, carried punishment out, courts would be and could not function. impotent *** as the United States Court in appropriately, Supreme Just 370 Woodv. 82 U.S. 8 L. S. Ct. Ed. 2d 569 Georgia, (1962), said:
We start with the that the of courts рremise to right conduct their business in an untrammeled lies at way the foundation of our system government courts must the means of necessarily possess punishing 712 the tends when conduct prevent directly contempt *** of their functions.
discharge in at as did alleged If the Stone large sheriff go permit basis finding there was certainly Mrs. petition, Cole’s the verified cause refers to The order show of contempt. doubt, That alleges of Mrs. Cole. beyond petition, petition facts Shores, of court. Ex parte supra; constituting O’Rourke, U.S., Cir., In 251 (6 1918); 251 205 re v. F. Swepston Terminer, Mont., 1918); v. & (D.C. F. 768 Court People Oyer ac- (1896). The that the 41 702 fact Div. N.Y.S. App. constitute criminal which the based tions on charge of the court affect the offense does not jurisdiction punish This commit- the offender for supra. contempt. Guyot the disobedience ment certainly process sheriff which actions peti- type alleged of the court. U.S. tion would constitute Hoffman, Solomon, also, See People Robran People,supra. supra; (1934). Misc. 271 N.Y.S. cause order to show
Petitioner also contends that Pocahontas, chancellor, while was void because sitting in which cause which is outside county (Jackson) of Mrs. Cole. issued it the ex application pending, parte Ann. 22-407.1 Prior to Stat. (Reрl. adoption 1962) merit in that conten- would have been there probably Tatum, 45. But un- 283 S.W. tion. Robertsv. See section, while der cited the chancellor had the authority, area serves the geographical physically present chancellor, order to render respect any appropriate over or matter cause any chancery pending *14 time, to notice the which he such place subject presides, law or rule be nature of the required hearing Robert H. notice that court. We take order the judicial order, the chancellor who the is chancellor issued Dudley, is in the Circuit, that Poсahontas geo- Chancery Eighth Court of of that circuit that the Chancery area graphical is a in which this matter County, pending, rule or he We know no court over which chancery presides. to No court such matters. order of the chancery pertaining in the office of the clerk of rule or has been filed such order to notice. Petitioner that he was entitled this court. contends
713
a
he is entitled to notice
on
It is
true that
quite
hearing
to show cause. There is no statute
that
order
requiring
the issuance
an
contemnor
notice
given
prior
alleged
cause,
to show
an accusation. The
order
which is simply
only
that
contemnor have
statutory requirement
alleged
notice of the accusation and have a reasonable time to make
34-903.
his defense. Ark. Stat. Ann.
court
chancery
statute,
was not
under the
but under its inherent
proceeding
State,
407,
466;
v.
234
See Weldon
150 Ark.
S.W.
powers.
State,
1058,
267;
v.
69
Freeman
188 Ark.
S.W. 2d
v.
Rimmer
Rimmer,
1016,
so,
229 Ark.
320
2d 92.
S.W.
Even
petitioner
accusation,
was entitled to written notice of the
and a reason-
able
defend.
v. Window Glass Cutters
opportunity
Phillipe
America,
Ark.,
(W.D.
1951).
F.S. 369
The order to
Leagueof
show cause constituted sufficient notice of the accusation. See
Tatum,
State,
293,
Roberts
Hall v.
237 Ark.
372 S.W.
supra;
603;
2d
109 Ark.
Poindexter
159 S.W.
(n.s.)
Toler,
517;
LRA
Pate
190 Ark.
S.W. 2d
that,
Petitioner also contends
not
being
party
action, was
to the
order
commitment
original
stranger
course,
and cannot be
one
Of
can be
punished
contempt.
for disobedience of an order of the court in
ac-
punished
in which
tion
he is not a
if he has notice of the order.
party
See Dennison
257 Ark.
215;
Whor-
Mobley,
ton v.
Petitioner also that order of argues commitment was too as to his duties vague with reference tо release of Stone in and with daytime to his Stone’s respect failure duty upon to return to the This a matter for jail evening. consideration on a motion to for want of quash jurisdiction not for consideration on a here to the challenge Furthermore, jurisdiction court. chancery conten- tion not one of the on which the motion grounds to quash was based. The merits of this contention are appropriate consideration on the to show cause. order hearing
Petitioner also asserts in the trial proceeding effect, was, mandamus performance compel *15 is there no merit a Obviously, аrgument. duty. one to failure perform punish petitioner proceeding its to compel performance. duty, cer- for writs of and The petition mandamus prohibition, tiorari is denied and the writ of prohibition temporary is heretofore issued dissolved.
We and Harris, Hickman, C.J., agree. J. in
Mr. concurs the result Byrd only. Justice Howard, dissents. J.,
George in I dissent Howard, dissenting. Justice, Jr., on petitioner’s request taken by majority disposition or, alternative, or mandamus for writ of prohibition, certiorari, Court County. the Chancery Jackson not, in this case is issue involved
The fundamental in- court has whether the trial by perceived majority, cite of the court for an officer contempt herent power nor it whether a court of its is disobedience process, motion, but, on its own on initiate proceedings a criminal the issue whether contempt proceed- contrary, in his civil action initiated private litigant ing may has been before the court whose order purportedly pending is not a to the who party ignored disregarded party oc- and disobedience action where such alleged pending curred out of the court. presence that civil It generally recognized proceed- who has a should be instituted ings aggrieved party while to be criminal interest protected, pecuniary right or the office of initiated the court are contempt proceedings for, in- at the deed, attorney, request prosecuting interest, is the the state real party consequently, that, indeed, in to the I submit is a proper party proceeding. case, have, the instant where a husband situations as we where wife are in a antagonists, support proceeding a third and attitudes are emotions charged, party, highly — Of- Chief Law Enforcement Sheriff County middle, a disinterested ficer of the county, caught *16 trial court to initiate and source should be called prosecute proceedings.1
It is clear from this record that even the trial had judge certain about the initiated misgivings contempt proceedings Mrs. Stone the sheriff in her civil action for against 13, 1978, trial in its order of March made the following observation:
“(10) The Court orders the cause hereby inviting Stone and Henderson Danny County Ralph [Jackson shall be and that be thereshall separated Sheriff] two henceforth maintainedwith a in eachcause separate complete files file matter Hendersonshall be henceforth, involvingRalph Parte, as Ex Added) Henderson. Ralph (Emphasis referred “(11) The Court that finds the better practice would have been tо obtain affidavits in the separate cause Stone and involving Danny Henderson.” Ralph However, after the above the court making went finding, on to further state: “The Court rejects argument Ralph Henderson cannot be as a in a civil brought party between a submit, husband and a wife.” I proceeding if this is true, did the court why and even order that a suggest sep- arate file be and maintained for the opened sheriff? It is ap- that the trial court parent is in the midst of an an- caught It is clear that the citation tinomy. Stone is for against Danny civil while the citation contempt, the Sheriff of against is criminal. County The learned trial must, as he judge recognizing, that were bound complications develop permitting criminal contempt the sheriff be proceeding against pur- sued in action, the wife’s civil ordered the proceedings against the sheriff to Parte, as “Ex designated Henderson.”It Ralph that in the criminal plain the sheriff contempt proceeding, entitled of innocence presumption that is afforded defendant every a criminal while in a civil proceeding, this proceeding, Moreover, unavailable. presumption 1One of the peculiarities of contempt is that the proceedings judge whose orders are disobeyed, dеfendant, or who is personally insulted by the may be the same who judge hears and decides the contempt charges. This questions raise about the impartiality of the judge. evidence to be established would have sheriff’s guilt doubt, civil while in a reasonable proceeding, beyond is measured in terms preponderance burden proof evidence. cases there are submit many
I although criminal contempt proceedings, Arkansas Reports, involving Parte”, is an as “Ex inappropriate styled designated for a criminal contempt proceeding. designation *17 Edition, Fourth and Bouvier’s Law Black’s Dictionary, Parte”, Rеvision, Law Third defines “Ex in the Dictionary, in this as follows: context used being proceeding, “ case, Parte', of a 'Ex heading reported the name that of following party signifies is heard.” whose case application Sheriff Henderson did from this record that It is plain relief, but, on the not the trial court for contrary, petition court an order and citation Mrs. Stone petitioned Thus, the him. proceeding against against designation Henderson”, Parte, is misnomer. the sheriff “Ex Ralph state, the sheriff an action against proceeding have been v. should State Arkansas styled consequently, Henderson.2 Ralph Mrs. Stone inasmuch as improperly Finally, sought, however, civil and criminal to initiate both in her civil verified action by filing purported proceedings affidavit, trial construed as an there which the court petition, one, accusation, in misnomer “Ex not even a is no defacto trial Parte, since the Henderson” Ralph proceeding, in other take notice of its own records causes judicial Lewis, v. therein, even the same See: Lewis between parties. 505; Bank 255 Ark. 502 S.W. Murphy Citizens 82 Ark. 100 S.W. City, Junction would, therefore, relief. I requested grant Reports in many a few cases the Arkansas are following 2The involving factual individuals contempt proceedings against criminal volving State, case: to the one in the instant York comparable situations Morrill, State, State CarlLee Benev. Ark. 386.