On March 3, 1952, respondent-court, Judge George W. Prichard presiding, made an order to show cause why Dwight E. Nystrom, petitioner herein, should not be adjudged in contempt for failure to pay. support money and alimony as had been decreed November 9, 1950, against him as defendant in the case of Velvia Pauline Nystrom v. Dwight E. Nystrom. Hearing thereon was set and notice served for April 7, 1952, but no record hearing was held on that date.
On April 10 respondent caused a bench warrant to issue pursuant to which a hearing was held on April 14 and continued from that date to April 21 and again to April 28, 1952.
On the latter date Nystrom was held to be in contempt of court on two grounds: 1. Failure to pay “support money etс. as ordered by the court”; and 2. Remarriage within one year from date of divorce, without permission of court. On each count a jail sentence was pronounced (the two to run “consecutively”), an appeаl bond was fixed and mittimus ordered “withheld until further order of the court.”
The present proceeding is brought to test the validity of said finding and order.
The notice to Nystrom of the March 3 order first fixed the date of hearing as March 7. It was drawn by Mr. McEntaffеr, attorney for the Probation Department of the Woodbury County District Court. Service was not then made as Nystrom was out of the city. Later the notice was altered and served to require appearance April 7, but no nеw order was made.
Nystrom and his attorney appeared at the hour set (April 7, 10 a.m.) and not finding the presiding judge there called in Mr. McEntaffer. They discussed the matter and arrived at an agreement, subject to approval by the court, that Nystrom *737 pay $80 that day and make up bis remaining deficiencies in payment at the rate of $10 a week over and above his regular payment. The other three judges of the district being busy the attorneys later submitted the proposal to Judge Ralph C. Prich-ard who orally approved the proposed settlement. Mr. McEntaf-fer was instructed to prepare a formal order that the hearing would be indefinitely continued upon the prompt pаyment of the decreed amount, plus the additional $10 each week. Nystrom drew a cheek that day for $80.
This check came back the next day marked “insufficient funds.” The deputy clerk in charge called Nystrom who promptly madе it good with a new cheek that cleared.
On April 10 Judge George W. Prichard, who had made the original order to show cause and evidently did not know what had transpired April 7, called Attorney Corbett and ordered him to produce his client in court that afternoon. The attorney was unable to get word to Nystrom but did reach his client’s father and prevailed on him to advance the total amount necessary to clear up all arrearages of alimоny and support payments. After delivering check for this amount Mr. Corbett says he went to the courtroom of Judge George Prichard with the clerk’s receipt therefor and “advised him that all deficiencies * * * had been paid up аnd that if he [his client] had been in contempt of court for failure to pay he was now purged of that contempt.”
The judge then for the'first time raised the question of Nystrom’s remarriage within the year without judicial consent. Mr. Corbett says (in the record) : “I advised the court that I couldn’t and wouldn’t produce the defendant that afternoon, whereupon the court had a bench warrant issued for the defendant.”
There is no substantial conflict in the record as to what had happened and as to the conditions existing. Attorneys Corbett and McEntaifer are in practical agreement as to the events of April 7. Judge Ralph Prichard, while having no clear recollection of details, says thеy “explained to me the arrangement on which they had agreed * * *” and “I said, anything made with the approval of Mr. McEntaifer I had no objection to it. If he would prepare an order to that effect I would sign *738 it. The order was not presented to me and as to wbat occurred thereafter I have no knowledge whatsoever.”
Attorney McEntaffer explains he did not prepare the order for Judge Ralph Prichard’s signature because he was аdvised that Nystrom’s $80 check had not cleared. Apparently he did not know it had later been made good.
Judge George Prichard thinks he was in his office the morning of April 7 until 10:05 when he “stepped over to the City Hall * * * and was gone a little less than 25 minutes and left word with the reporter and bailiff” when he would be back. He adds: “I was also present that afternoon.”
The facts pertaining to Nystrom’s arrearages and of his remarriage in another state shortly after the divorce decree was entered are undisputed. His conduct in those respects cannot be condoned or excused. Disapproval of his remarriage was warranted and a certain amount of judicial anger is very understandable. But was defendant in contempt on either count?
I. The record shows without conflict that on April 10 petitioner’s arrearages in payment of alimony and support money were completely liquidated by pаyment in full of the total amount due. Prior to that time, on April 7, the agreement had been made between attorneys and Judge Ralph Prichard that it might be gradually absorbed by an additional weekly payment of $10. The fact this arrangement wаs never reduced to writing and formally approved by judicial entry need not disturb us here in considering whether petitioner was in contempt on April 28 for failure to make payments “as ordered by the court.”
Section 598.15, Iowa Code, 1950, authorizes punishment for contempt “if any party against whom such decree has been entered, shall
willfully
disobey the same * * (Emphasis supplied.) See Porter v. Maxwell, Judge,
It maybe doubted if there is any evidence of wilfulness shown in cоnnection with petitioner’s arrearages. But we prefer to rest our decision upon the fact that the arrearages had been liquidated at the time the bench warrant issued. Section 665.5, Iowa Code, 1950, certainly contemplates that the remedy by imprisonment for contempt is for the purpose, not of punishing
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past default, but of compelling payment: “If the contempt consists in an omission to perform an act which is yet in the power of the person to perform, he may be imprisoned
until he performs it.”
(Emphasis supplied.) Code sections 598.15 and 665.5 are properly construed together. See Roberts v. Fuller, Judge,
Even under the general authority inhering in all courts to punish for contempt it has been said the object and purpose “is not to punish a public offense, but to compel obedience to and respect for the order of the court.” Gibson v. Hutchinson, Judge,
It seems to bе the general rule that prompt compliance after institution of contempt proceedings with the court order or decree alleged to have been disobeyed will usually be regarded as a sufficient purging, “esрecially where no material injury or loss has been suffered by the party for whose benefit the action was taken.” 17 C. J. S., Contempt, section 105. No such loss or injury is shown here, and we are of' the opinion the court had no right to prоnounce a sentence for imprisonment after compliance with the alimony and support provisions of the divorce decree. No further purpose was to be served except punishment, and Code section 665.5 does not authorize imprisonment for that purpose.
II. Section 598.17, Iowa Code, 1950, provides: “In every case in which a divorce is decreed, neither party shall marry again within a year * * * unless permission to do so is granted by thе court in such [divorce] decree.” The following Code section makes a marriage contrary to the provision of section 598.17 a misdemeanor and punishable accordingly. The remar
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riage is not even declared to be illegal. Farrell v. Farrell,
Apparently tbe bar of tbis Code section was written into tbe divorce decree in tbe instant ease, since botb parties assume it in argument. Tbe record does not sbow. Respondent’s argument even contends tbe statute required it to be expressly embodied in tbe decree. We do not so interpret tbe statutory language.
In some states tbe statute empowers tbe court to restrict remarriage by provision in tbe decree. 27 C. J. S., Divorce, section 162. On tbe contrаry our statute automatically denies the right to remarry within tbe one-year period. Provision in tbe decree for that purpose is not contemplated, and if inserted is surplusage. It can add nothing to tbe statutory mandate. Tbe conclusion logiсally follows that such remarriage without judicial permission written into the decree is a violation of statute but not a contempt of court.
We have difficulty finding authority directly in point. Apparently tbe attorneys found none. It seеms established that resistance to, or refusal to obey, a void order or a void provision in a decree cannot furnish basis for contempt proceedings. Burtch v. Zeuch,
Jurisdiction has been defined as “tbe power of binding decision possessed by a judiсial or a quasi judicial tribunal.” Incorporated Town of Carpenter v. Joint Drainage District,
Tbe addition to a divorce decree of an injunction against remarriage is not under our statute the exercise of a “powеr of binding decision.” If authorized,- tbe only purpose it could serve would be to create an additional sanction to compel obedience to a statute which prescribes its own sanction. However desirable suсh result may be it is unauthorized by tbe statute.
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Injunction will not lie at tbe suit of an individual to restrain commission of a merely criminal act unless it threatens plaintiff with some special injury, not common to the general public but peculiar to himsеlf. “There must be some interference, actual or threatened, with property or other rights which chancery will undertake to protect, of some additional element bringing the case within the domain of that court.” Farmers Cо-Operative Assn. v. Quaker Oats Co.,
By fair analogy a court of equity may not (in absence of statutory authority) by an injunctive provision in a divorce decree lay the foundation for a contempt proceeding to punish a misdemeanor committed by violation of a statutory ban against remarriage.
We think the court here acted without authority and the order holding petitioner in contempt of court must be annulled on both charges. — Writ sustained.