13 Mont. 425 | Mont. | 1893
In this proceeding, which comprises a writ of habeas corpus addressed to the sheriff of Lewis and Clarke county, together with a writ of certiorari addressed to the district court within and for said county, relator seeks a review of certain proceedings, and discharge from imprisonment imposed upon him by order of said court.
It appears that in an action for divorce and alimony instituted against relator by Eva Finkelstein, his alleged wife, such proceedings were had as resulted in an order of the district court requiring relator to pay fifty dollars for employment of counsel on behalf of plaintiff in said action for divorce, together with the sum of thirty dollars per month, temporary alimony, payable to plaintiff until otherwise ordered, and that on default of payment of said sum of thirty dollars, as ordered, such further proceedings were had in the district court in said matter as resulted in an order committing defendant to imprisonment in the county jail for contempt of court in disobeying said order for payment of temporary alimony. Thereupon he sued out of this court a writ of habeas corpus, accompanied by a writ of certiorari, to review said proceedings of the district court, whereby relator seeks to show that said order for imprisonment is in excess of the jurisdiction of the district court, on certain grounds urged, and upon such showing to obtain an order discharging relator from imprisonment, through the writ of habeas corpus.
Respondent’s counsel answers all these propositions urged on behalf of relator by pointing out that an appeal lies from a judgment or order of the district court for payment of temporary alimony in said proceedings for divorce, and that therefore the same cannot be reviewed by certiorari, as that writ can only be invoked where there is no appeal, as provided by section 555, Code of Civil Procedure, as well as the general doctrine defining and designating the functions and use of the writ of certiorari. And respondents’ counsel further insists that inasmuch as an appeal lies from said order, through such appeal, with the stay bond provided in such cases, -relator would obtain
■■ That an appeal lies from the order for payment of temporary alimony in an action for divorce has been determined upon such sound principles of reason and authority, reviewed in the case of Sharon v. Sharon, 67 Cal. 185, under like provisions of the statute governing appeal as prevails here, and it is unnecessary to do more than to cite that case for an exposition of the authorities and reasons upon which we hold that appeal lies from the order or judgment of the district court for payment of alimony in the proceedings in question. Relator’s counsel urges that, notwithstanding such right of appeal, this court should review the proceedings of the district court resulting in the commitment of relator for contempt, because the constitution (article "VIII, § 3) provides that “each of the justices of the supreme court may also issue and hear and determine writs of certiorari in proceedings for contempt in the district court.” Under this provision he argues that the scope of said writ is enlarged, so that, although relator has an appeal from said order or interlocutory judgment, and thereby relief from the effect thereof, the same should also be reviewed on certiorari where imprisonment for contempt is involved.
We cannot sustain this position. In our dpinion, the framers of the constitution, in referring to the writ of certiorari, contemplated that proceeding as defined in our jurisprudence, as to its office and the conditions under which it may be invoked. (In re MacKnight, 11 Mont. 132; 28 Am. St. Rep. 451.) It follows, therefore, that relator has a remedy in the matter in question by appeal, if his contention is well founded, through which he may obtain relief, both from the imprisonment and from other methods of enforcing the order complained of. For these reasons an order will be entered remanding him to custody.
