74 Wis. 439 | Wis. | 1889
Lead Opinion
In March, 1888, in an action in which the plaintiff in error was complainant, a judgment of divorce from the bonds of matrimony was rendered in favor of the defendant in error by the circuit court of Milwaukee county. By the judgment the plaintiff husband was required to pay the defendant wife $30 a month for .alimony, as well as the costs of the action, and execution for the costs was awarded. The husband failed to pay the alimony as required, and the wife procured an order for him to show cause why he should not give security for its payment. On the hearing of this rule the circuit court made an order, on the 13th day of June, 1888, that the husband forthwith execute and deliver to the wife, or her attorneys, a good and sufficient bond, with a good and sufficient surety to be approved by the court, in the sum of $1,000, conditioned, among other things, that the said plaintiff would, within ten days from the date of the bond, pay to the defendant or her attorneys all moneys due on the judgment for alimony, and would further pay the defendant or her
The husband, having been imprisoned on the warrant, sued out a writ of habeas corpus before a court commissioner, and upon the hearing of that proceeding was discharged. Thereupon the cause was brought before the circuit court on certiorari to review the proceeding before the court commissioner, and, on hearing, the circuit court reversed the order of the commissioner discharging the husband, and remanded him to imprisonment under the warrant. The husband has brought the case to this court by a writ or error for a review of the proceedings before the circuit court, and to reverse its last order or judgment. '
This statement of the various steps taken in the case was deemed necessary to make our further remarks intelligible; but, before considering the cause upon its merits, we observe that the case stands here in substantially the same position it would if the circuit court had issued the writ of habeas corpus, and on the hearing had remanded the plaintiff into the custody of the officer. Such, in effect, was the ’ruling in State v. Grottkau, 73 Wis. 589, where that question of practice was decided; or, in other words, the field
Bearing in mind these rules as to the extent of our inquiry in the case, we will proceed to the question whether the record shows a want or defect in the jurisdiction of the court which made the orders for the disobedience of which the husband was imprisoned. His counsel contends that the circuit court had no power to make the order requiring a bond to be given for the payment of alimony, with a surety, because a performance of the order did not depend upon the act of the husband alone, but depended upon the act of some person not a party to the suit. But it must be borne in mind that in civil and criminal procedure the magistrate or court often exacts security from, the defendant or accused, and, in case of refusal, incarcerates him. It is true, a poor man cannot always produce security, and may go to prison for failing to perform an act beyond his power. Sec. 2367, R. S., in substance enacts that, in all cases where alimony or other allowance shall be adjudged the wife, the court may provide that the same be paid in such sums and at such times as shall be deemed expedient, and may impose the same as a charge upon any specific real estate of the party liable, “ or may require sufficient security to be given for the payment thereof.” This is not confined to cases where the husband has property upon
The husband is not obliged to wait for justice in a prison. Tie may, by a proper proceeding, obtain a modification or change of the order by showing the court that it is absolutely beyond his power to comply with it; but it is clear to our minds that the mistake in the order of J uly 14th — if one there was — cannot be reached or corrected in this proceeding. The court had power, under the statute, to make the order and to enforce obedience to it by proceedings as for contempt. This is the only question of jurisdiction involved, and, it being decided adversely to the husband, disposes of the case.
The plaintiff’s counsel claims that the court had no authority to punish as for contempt the refusal to give the bond with a surety to secure payment of alimony. But suppose the court had ordered the husband to pay over
It is hardly necessary to observe that there is nothing in In re Pierce, 44 Wis. 411, which aids the plaintiff. It is there held that the court, in the contempt proceeding, acted under the wrong statute, and exceeded its jurisdiction both as to matter and law; consequently its order was held void. The chief justice, however, in his dissenting opinion, held that the defect was one of error merely, and not jurisdictional.
The original judgment of divorce does not provide for the giving of any security by the husband for the payment of the alimony therein provided for, and counsel says the court had no authority to require such security after final judgment; but, under our statute, so far as alimony is concerned, the judgment is subject to the continuing power of the court, as it has frequently been held. The court may, on application of either party, revise and alter the judg-
Our conclusion upon the case is that the record shows no. jurisdictional defects in the proceedings, nor any want of legal authority for the detention of the husband. At most, there was only error in the exercise of a lawful jurisdiction. The judgment of the circuit court is therefore affirmed.
Dissenting Opinion
I most respectfully dissent from the decision in this case. The decision is evasive of the real question. The order requiring the defendant to give security was not appealed from, and the time for appealing therefrom ha.d expired. It is therefore doubtful, at least, whether that order can be reviewed on this writ of error. The court then adjudged that the defendant be imprisoned for contempt for not complying with that order. The court commissioner, on habeas corpus, discharged the defendant on his showing by affidavits that it was not in his power to perform that order. On certiorari, the circuit court adjudged that the order of the court commissioner be reversed, and that the defendant be recommitted to prison for not performing that same order. This last judgment is brought
By the Court.— The judgment of the circuit court is affirmed.