Opinion
39999.
DECIDED MAY 16, 1963. REHEARING DENIED JUNE 14, 1963.
Contempt of court. Chatham Superior Court. Before Judge Harrison.
William A. Searcey, Donald E. Austin, for plaintiff in error.
Andrew J. Ryan, Jr., Solicitor General, Gilbert E. Johnson, contra.
An informal and voluntary agreement which is entered into with the court by one who is not a party to a cause pending before the court and in which there is no express command or prohibition of court upon the volunteer, may not constitute the basis for contempt proceedings predicated upon the failure of the volunteer to honor the same.
DECIDED MAY 16, 1963 — REHEARING DENIED JUNE 14, 1963.
Dolvin Dunn was adjudged in constructive contempt of the Municipal Court of Savannah and was fined $25 and sentenced to serve 24 hours in the common jail of Chatham County. The Superior Court of Chatham County on certiorari affirmed the judgment of the Municipal Court, and the defendant excepted, bringing the case to this court for review.
The record discloses that the attachment for contempt arose out of the following facts. On March 19, 1962, a warrant was issued by the Municipal Court of Savannah against Carl Clements charging him with the offense of fornication and adultery and on the following day, he entered a plea of guilty to said charge. On the same day, Dolvin Dunn, the brother-in-law of Carl Clements, appeared before the court in an effort to secure the probation of the sentence to be imposed upon Clements, and stated to the court that if Clements were released with a probated sentence, he, Dunn, would assist Clements in procuring employment, that he would "keep an eye on him," and that he would post fifty checks each in the sum of $20 to underwrite Clements' obligation to support his children. The court in reliance upon said representations by Dunn agreed to allow Clements' sentence to be served on probation and Dunn in furtherance of his voluntary agreement turned over fifty post-dated checks to Major Reilly of the Domestic Relations Division of the Superior Court of Chatham County for processing and distribution as each check became due and payable.
Subsequently, Dunn threatened to stop payment on said checks and was informed that he would be ruled for contempt if he carried out such threat. Thereafter, Dunn stopped payment on the check dated June 13, 1962, which was given pursuant to the foregoing agreement, and on June 19, 1962, a rule for contempt was issued by said court, ordering Dunn to show cause why he should not be adjudged in constructive contempt of court because of "his deliberate act of stopping payment on said check in violation of his voluntary direct undertaking with the court." After a hearing at which it was disclosed that Clements had reimbursed Dunn for the checks previously cashed as well as for the one upon which payment had been stopped, the adjudication of contempt was made.
1. The defendants in error have filed a motion to dismiss the writ of error upon the ground that the State of Georgia, a necessary party in this case, was not served with a copy of the petition and writ of certiorari within five days after the filing of said petition and writ in the office of the Clerk of the Superior Court of Chatham County. An examination of the record in this case discloses that the same contention was made by the State in a motion to dismiss the certiorari filed in the superior court, and said motion was denied. This issue having been decided adversely to the defendants in error in the court below and it appearing that the State was named as one of the defendants in error in the bill of exceptions to this court and served as such, the motion to dismiss is denied. See Bryan v. State, 3 Ga. App. 26 (2b) ( 59 S.E. 185).
2. The law of this State is clear that an order or judgment of court which merely declares rights of parties without any express command or prohibition upon said parties is not one which may be the basis of contempt proceedings, and the failure to honor such a decree does not constitute contempt of court. Hammock v. Hammock, 209 Ga. 751 ( 76 S.E.2d 15); Cagle v. Patterson, 80 Ga. App. 865 ( 57 S.E.2d 509). This being the law, it necessarily follows that a mere informal and voluntary agreement which is entered into with the court by one who is not a party to a cause pending before the court and in which there is no express command or prohibition of court directed to such volunteer, may not constitute the basis for contempt proceedings predicated upon the failure of the volunteer to honor the same.
The act of Dunn in stopping payment on one of the checks posted by him as part of his voluntary undertaking with the court in no way impeded or obstructed the administration of justice since the court could at any time revoke the probated sentence imposed on Clements upon a showing that its terms had been violated. Under the terms of the sentence, all of the conditions to be complied with were imposed solely upon Clements and were not in any way dependent upon the acts of Dunn who was under no command or prohibition of court.
Accordingly, since the citation for contempt in this case was predicated solely upon Dunn's refusal to honor the agreement voluntarily made by him with the court (there being no contention that his original undertaking to procure the probation of the sentence imposed on Carl Clements was done with fraudulent intent to practice deceit or work an imposition upon the court), we are constrained to hold that the adjudication of contempt was contrary to law, and the judgment of the Superior Court of Chatham County must be reversed.
Judgment reversed. Nichols, P. J., and Frankum, J., concur.