Tolman v. Leonard, 6 App. D.C. 224

Tolman v. Leonard

6 App. D.C. 224 | D.C. Cir. | 1895

Mr. Justice Shepard

delivered the opinion of the Court:

1. The only question for consideration in a proceeding of this nature is as to the jurisdiction of the court whose order is sought to be vacated. Had that court any jurisdiction in the premises at all ? If so, did it clearly exceed that jurisdiction in the order complained of? Ex parte Kearney, 7 Wheat. 38; Ex parte Lange, 18 Wall. 163, 176; Ex parte Rowland, 104 U. S. 604, 612; In re Snow, 120 U. S. 274, 285; In re Ayres, 123 U. S. 443; Ex parte Terry, 128 U. S. 289; In re Hans Nielsen, 131 U. S. 176; In re Wilson, 140 U. S. 575.

2. It is conceded, as a matter of course, that the Supreme Court of the District of Columbia had jurisdiction to pass the order requiring the payment of the alimony in the amounts and at the times specified, which is the foundation of the rule to show cause and the order of commitment. But it is earnestly contended that the court had no jurisdiction to enforce that order by committing the party to jail for refusing to obey it, because it is in effect “ imprisonment for debt.” These words have a well defined and well known meaning, and have never been held to apply to proceedings for the punishment of technical contempts, and rarely, if ever, to process to enforce the performance of a specific decree in equity requiring action at the hands of the party to render them effectual.

It is said, however, that an order to pay money' is exceptional, and that it creates a debt which can only be enforced like a similar judgment at law by execution against the property of the party. In this view we cannot concur. A final decree in equity ascertaining and declaring a specific sum of money to be due as a debt, by one party to the other, is quite different from an order to a trustee or receiver to pay over money in his hands, or to a husband to pay alimony to his wife out of property in his exclusive *233possession, or of money or income of which he is in the regular receipt at stated periods. The allowance of alimony is not in the nature of an absolute debt. It is not unconditional and unchangeable. It may be changed in amount, even when in arrears, upon good cause shown to the court having jurisdiction. The fact that such a decree may be sued upon under certain circumstances, or enforced, as is the case in some jurisdictions, by either execution or attachment of the person, or both, does not, in our opinion, change its essential character.

It is the judicial ascertainment and declaration of a specific duty which the husband owes to the wife, in accordance with the law of that favored relation, and is akin to the ordinary decree for specific performance. In the apt language of the Supreme Court of California: “ The husband is bound to support the wife, yet this duty is an imperfect obligation which is not technically a debt. He does not owe her any specific amount of money, but he owes a duty to her which may be enforced by the order of the court compelling him to pay her alimony.” Ex parte Perkins, 18 Cal. 60. It was also well said by the Supreme Court of North Carolina, that “ It is an order of a competent court only to be enforced as are other judicial commands, when necessary, by process of attachment against the person. The power to award the process is inherent in the court, essential to the exercise of its jurisdiction and the maintenance of its authority.” Pain v. Pain, 80 N. C. 322> 32S-

The following well considered cases assert substantially the same doctrine. Ballard v. Carpenter, 2 Metcalf (Ky.) 412; Dwelly v. Dwelly, 46 Me. 377; Russell v. Russell, 69 Me. 336; Petrie v. People, 40 Ill. 334; Blake v. People, 80 Ill. 11; Lewis v. Lewis, 80 Ga. 706; McClung v. McClung, 33 N. J. Eq. 462; Park v. Park, 80 N. Y. 156; Strobridge v. Strobridge, 21 Hun, 288; Haines v. Haines, 35 Mich. 138; Daniels v. Lindsey, 44 Iowa, 567; Slade v. Slade, 106 Mass. 499; Menzie v. Anderson, 65 Ind. 239.

*234The only case holding that attachment of the person for non-payment of alimony is virtually imprisonment for debt that has come under our observation, is Coughlin v. Ehrlert, 39 Mo. 285. In that case, however, it was admitted that if it could be shown that the defendant had certain money in his possesion he might be attached as for contempt for disobedience of an order to pay it over.

The facts of this case strongly illustrate the justice and reason of the demand that courts of equity shall not, by construction, be shorn of the power to compel obedience to their decrees awarding alimony. The appellant admits the receipt of an ample salary. He is probably in receipt of additional revenue from professional labors. He has no one else with whose support he is lawfully chargeable. He has no property subject to execution and his salary cannot be reached by process of garnishment. To deny the right to coerce him into performance is to deny all right of redress to the wife. Why go through the idle ceremony of ordering payment if, with ample means at his command, he may treat the order with contemptuous defiance ?

3. The answer of the respondent to the rule to show cause was not conclusive, and the court was not bound by the allegations therein, or the express denial of a willful intent to disobey its order. The answer may be conclusive, probably is, in the ordinary proceeding for what has been called criminal contempt, where the sole object is the punishment of the offender. But in equity, where the object is to compel performance of a decree in aid of a private right, and the punishment of the offender may or may not be made incidental thereto, the answer is not conclusive and the court may look beyond it if justice demands. Underwood’s Case, 2 Humphreys (21 Tenn.) 46; State v. Harper's Ferry Bridge Co., 16 W. Va. 864, 873; In the matter of Pittman, 1 Curtis C. C. 186, 190; United States v. Mann, 2 Brock. 9; State v. Matthews, 37 N. H. 450; Buck v. Buck, 60 Ill. 105; Crow v. State, 24 Tex. 12; Albany City Bank v. Schermerhorn, 9 Paige Ch. 372.

*235If an answer should show clearly the inability of a party to comply with the order, and there is nothing to the contrary, he ought to be discharged. It cannot be justly said that the respondent was denied a hearing in this case. His capacity to pay had been inquired into and passed upon when the original order was made. The answer to the rule showed no diminution of his means or resources since that time. Nearly three years had elapsed during which his salary continued unabated.

In answer he says that during the interval between the passing of that order and its affirmance in this court, November 6, 1893, he received about $3,000 by way of salary ; that he spent a part (without saying how much) in his own support and that • of a parent “ in part dependent upon him and $650 in traveling for his health; and that he also consumed some of it in buying needed books and instruments. In the second answer he makes no account of the money received during the year 1894. The order which he disobeyed did not require him to pay the whole amount in arrears, but the sum of $600 only, and was accompanied with permission, upon payment thereof, to apply for a reduction of the amount named in the original order. The court was dissatisfied, and justly so, with this answer. It gave no reasonable excuse for disobedience of the order.

4. The authorities are not uniform on the question whether an order of commitment should recite the facts necessary to show that the court had jurisdiction to inflict the penalty. By some this is regarded as essential to a legal commitment. Ex parte Field, 1 Cal. 187; Commonwealth v. Perkins, 124 Pa. St. 36; Ex parte Robertson, 27 Tex. Ct. App. 628; Fischer v. Longbein, 103 N. Y. 84. This would seem to be the better practice at least.

Other authorities hold that where the order proceeds from a court of general jurisdiction it is not essential that the facts be recited therein. In re Eaton, 51 Fed. Rep. 804; Ex parte Summers, 5 Ired. 146; Church on Habeas Corpus, secs. 316 and 336, and cases cited. That question *236need not be decided now, however. Conceding that the order of commitment should show the ground upon which it rests, we think that has been sufficiently done. The proceedings which form part of the record show plainly that the commitment was had for disobedience of the order to pay alimony, and for nothing else. This is a sufficient compliance with the rule. Fischer v. Hays, 6 Fed. Rep. 63; Fischer v. Longbein, 103 N. Y. 84, 95.

5. The last question to be considered arises also on objection to the terms of the order of commitment. It is contended that it stands as an unqualified order of imprisonment at the pleasure of the court. Whilst such an order has the sanction of very high authority (Kent, C. J., in case of J. V. N. Yates, 4 Johns. 314, 373), we think the better and safer rule, and one certainly more in accord with the spirit of our institutions, is, that the order of commitment to jail for contempt should be specific and certain in its terms, and not for a period so indefinite as the mere pleasure of the court. People v. Perfenbrink, 96 Ill. 68; Rapalje on Contempt, sec. 129 and cases cited; Church on Habeas Corpus, sec. 334. The rule, however, applies in its'strictness to cases of technical contempt where the imprisonment is for an offence committed against the dignity of the court; that is to say, where it is inflicted as punishment, and not to compel performance of a specific order or decree.

The order in this case, though subject to criticism because it does not in express terms recite that the confinement shall be until the performance of the decree, cannot be said to be void. That it is necessarily upon that condition, we think, appears clearly enough from the record of the entire proceedings. Taking these proceedings in connection with the final order of commitment, in which they terminated, there can be no reasonable doubt as to the true intent and meaning of the order. It cannot be declared void for want of mere technical accuracy in its recitals, when the defects therein are supplied by the record.

After careful consideration of all the errors assigned, we *237find no error in the record that would justify us in reversing the judgment remanding the appellant to the custody of the warden, and it is therefore affirmed.

Judgment affirmed.