52 Kan. 13 | Kan. | 1893
On the 24th day of January, 1893, Genorie E. Smith, the wife of the petitioner in this case, filed In r petition in the district court of Pratt county, praying for a divorce from him, for the custody of their three minor children, for alimony, and that her husband be enjoined from selling or disposing of his-property. At the commencement of the action,-the district judge allowed Mrs. Smith $20 a month for the support of herself and children during the pen-dency of the action, and $50 for legal expenses. The custody of the children, Lewis C., Julia V. and Thomas N. Smith, was, at the same time, given to Mrs. Smith. On the 2d of May, 1893, Mrs. Smith filed her written motion asking that her husband be compelled to pay $200 for legal expenses, and that, in default thereof, he be committed for contempt of court. Notice of the hearing of this motion at 3 o’clock p. m. on May 2, 1893, was served upon Thomas A. Smith, the petitioner, at 2:35 o’clock p. M. of that day. Upon the hearing of the motion, the court made the following order:
“The court in this case takes ‘judicial knowledge’ of the fact that the defendant, Thomas A. Smith, stands in contempt of court in refusing to obey the mandate of this court, served upon him personally, and, without showing cause why he should not obey said mandate in this court, he comes into court in this case, out of which said mandate is issued, and ■ asks for affirmative relief. It is further ordered by the court, that for said contempt he stand committed to the jail of Pratt county until he produces .the children Julia V. and Thomas N. Smith in court, or purges himself of contempt by showing his inability to do so. It is further ordered by the court, that he pay into this court, within five days, the sum of $100, for the benefit of the plaintiff; and, unless he shows to the satisfaction of the court that he is unable to comply with the order of the court, his answer in this case and his depositions will be stricken from the files of this court. And it is further ordered by the court, that the plaintiff need not appear to take depositions at Winfield, in this state, on May 4,1893.”
Subsequently, and on May 15, 1893, Thomas A. Smith
We think the judgment for contempt and the order of committal fatally defective, because, at the time, the court acted without authority. It is true that in the original order of the 24th of January, 1893, Thomas A. Smith was prohibited from interfering with the control of the children, or either of them, but at the time of that order Smith and the children were in Illinois. This order was served upon Smith there, but it does not appear that he was directed or commanded to produce the children in court, or to deliver them, or either of them, to Mrs. Smith or any other person. The hearing on May 2, 1893, was upon the written motion of Mrs. Smith, concerning the necessary expenses incurred by her in the preparation of her action, and alleging the noncompliance of her husband with the order of the court requiring him to pay her expense money for the preparation of trial. Upon the hearing of this motion, the court seems to have taken “judicial knowledge” that Thomas A. Smith had, in some way, interfered with the custody or control of the children. That was not the matter before the court then for examination. Until the order of the 2d of May, 1893, requiring him to to produce the children in court, no such command had been issued or entered. No verified complaint, affidavit or information was filed upon which to try the petitioner for the contempt of which he was convicted. No notice was ever given him that he was to be tried for not delivering the children into court, or to Mrs. Smith, or to any other person. The court was not justified, under the circumstances of this case, in taking judicial knowledge that the petitioner had refused to allow Mrs. Smith the custody of the children, or that he had interfered away from the court with them against its order. (In re Dill, 32 Kas. 668; The State v. Henthorn, 46 id. 613; The State v. Blackwell, 10 S. C. 35; Young v. Cannon, 2 Utah, 561.)
If the court adjudges a party guilty of contempt, the clerk
Upon the petition presented and the facts established upon the hearing, the petitioner must be discharged.