Summary
In Sinquefield v. Valentine, 160 Miss. 61, 133 So. 210 (1931), Sinquefield was ordered to deliver custody of his children to their grandfather and was adjudged in contempt of court for failure to do so.
Summary of this case from Gadson v. GadsonOpinion
No. 29341.
April 6, 1931.
CONTEMPT. Father's refusal to turn over custody of children to grandfather, under void order of chancery court directing transfer, cannot constitute contempt.
In prior habeas corpus proceedings involving validity of order of chancery court directing transfer of custody of children from their father to their grandfather, court held that the order directing the transfer was void because entered by the chancery court without notice to the father and an opportunity to be heard, and that due process required such notice and opportunity to be heard.
APPEAL from chancery court of Jones county, Second district; HON. FRANK F. MIZE, Chancellor.
Collins Collins, of Laurel, for appellant.
Appellant is not guilty of contempt of court because there was no valid decree in this case and the decree is void for two reasons, to-wit; there was never any service on appellant or any notice given; the subject-matter of the suit was not in the jurisdiction of the court at the time the decree was rendered and never had been lawfully and rightfully brought into court.
This court will take judicial knowledge of a reversal of a judgment in an original action pending appeal.
Keeton et al. (Eastman-Gardiner Co.), garnishee v. Robinson, 110 So. 839.
This court having ruled that it would take judicial notice of the former decisions and having decided that the decrees entered in this case are null and void the only other question left is whether or not a person can be guilty of contempt for failing to obey a void order.
Appellant was not guilty of any contempt because the decrees of the court were null and void.
McHenry et al. v. State, 44 So. 831. T. Webber Wilson and Ellis B. Cooper, both of Laurel for appellee.
There is no question about appellant's refusal to comply with the court's order. Assuming the invalidity of the original order, still the appellant had submitted himself to the jurisdiction of the chancery court and was under the duty to conform to the mandate of that court. This he refused to do. We submit that the cause should be affirmed.
Appellee, W.P. Valentine, was by the chancery court of Jones county appointed guardian of his grandchildren, H.B. Sinquefield, Jr., aged five, and Mary Elizabeth Sinquefield, aged four, and made an order on their father, the appellant, that he give the children into the custody of their grandfather. This order was duly served on appellant, who refused to obey it. Thereupon appellant was cited and tried for a contempt of the court for disobedience of the order. He was adjudged guilty, and sentenced to confinement in the county jail until he complied with the order. From that judgment of the court appellant prosecutes this appeal.
Appellant's contention is that the order of the court requiring him to turn the children over to their grandfather was void; therefore, under the law he was guilty of no contempt because of his disobedience of the order.
On the 10th day of September, 1930, the grandfather filed his petition in the chancery court of the Second district of Jones county, asking that he be appointed guardian of the grandchildren. On the same day, without notice to, and an opportunity to be heard on the part of, the father, the prayer of the petition was granted. On the 10th day of October, 1930, the chancery court made a decree annulling that decree, and ordering the sheriff of the county to deliver the children back to the father. On the 11th day of October, 1930, the chancery court without notice to and hearing appellant, made still another decree, annulling both of the former decrees, and ordering the children to be turned back to the grandfather. On the 13th day of October the court made an order that the latter decree be by the sheriff served on the father, which was accordingly done. The father refused to obey the order, and retained the custody of the children. For disobedience to this order it was adjudged that the father was in contempt of the court, and that he be confined in the county jail until he should comply with the order.
The decrees of the court here involved were the identical decrees before this court in the habeas corpus proceeding between the same parties, reported in 132 So. 81. In that case the court held the decrees void, because they were entered by the chancery court without notice to, and opportunity to be heard on the part of, appellant. The court held that due process required such notice and an opportunity to be heard.
The question, therefore, in the case is whether or not the father, in refusing to turn over the custody of his children to their grandfather, under a void order of the court, requiring him to do so, could be adjudged in contempt of court. On the authority of McHenry v. State, 91 Miss. 562, 44 So. 831, 833, 16 L.R.A. (N.S.) 1062, the question must be answered in the negative. The court said in that case, among other things:
"It is a misconception to suppose that only in a case where the court has no jurisdiction over the particular suit can one safely disobey the order of a court. A court may have jurisdiction, in a general sense, of the particular suit, as regards both its subject-matter and the parties to it, and yet the court may make, in the trial of that particular case, an order which, regard being had to the nature of the suit, the court has no power whatever to make. Such an order is an absolute nullity, not a mere irregularity; and both where general jurisdiction at all to entertain the particular cause is wanting, and also where, such general jurisdiction existing, the court, in the progress of the trial of the particular cause, makes an order wholly void, there is wanting utterly the predicate for any contempt process for disobedience to such order."
Reversed, and judgment discharging appellant.