Krueger v. Krueger, 143 N.W. 368

Krueger v. Krueger

143 N.W. 368 | S.D. | 1913

WHITING, P. J.

This is an appeal from a judgment adjudging appellant guilty of contempt of the circuit court, and inflicting punishment therefor. The judgment recited: “That the said defendant be and he is hereby declared to be in contempt of this court for violation of and disobedience of the orders of court heretofore rendered in this action.” This action is one wherein plaintiff sought and obtained a decree of divorce from this appellant, the defendant therein, and the affidavit of plaintiff, sub*472•mitted in support oí her motion seeking to have appellant adjudged guilty of contempt of court, sets forth that the alleged contempt consisted in appellant's failure to comply with certain provisions of the decree granted plaintiff therein.

[1] The circuit court made no findings of fact, and appellant assigns as error the entering of the judgment adjudging him guilty of contempt without the making of findings upon which such judgment could be based. This question was fully considered by this court in Hoffman v. Hoffman, 26 S. D. 34, 127 N. W. 478, 30. L. R. A. (N. S.) 564, Ann. Cas. 1913A, 956, wherein it was held that a court cannot lawfully adjudge a person in contempt without making finding's of fact showing, as a matter of law, that such person is in fact guilty.

[2] Appellant also contends that the proof submitted showed that appellant had no notice or knowledge as to the contents of said decree, arid that no copy of said decree had been served upon him. The proof submitted wholly failed to show that appellant had been personally served with the decree, and failed to show that he had knowledge of its contents. Under the provisions of sections 330 and 562 Code of Civil Procedure, before appellant could be adjudged guilty of contempt of court in not obeying the mandates of such decree, it must be shown that a copy of such decree was personally served upon him before the commission of, or omission to do, those acts the commission or omission of which constitute the alleged' contempt. Larson v. Larson, 9 S. D. 1, 67 N. W. 842; Scott v. Scott, 9 S. D. 125, 68 N. W. 194.

[3] The circuit court did not find that appellant acted willfully or contumaciously in not-obeying the provisions of such decree, and the evidence submitted would not warrant such a finding; without such finding no judgment, adjudging one guilty of contempt of court, can be sustained. Hoffman v. Hoffman, supra.

The judgment appealed from is reversed.

GATES, J-, takes no part in this decision.