Opinion
Department Two
Application for discharge upon writ of habeas corpus.
COUNSEL
No briefs on file.
OPINION The Court:
The petitioner asks to be discharged from imprisonment for an alleged contempt of Court in disobeying its order to pay alimony.
1. It is claimed that the Court exceeded its jurisdiction in increasing the amount over that decreed to be paid by the judgment entered in the action. The Code, however, authorizes the Court to modify its orders in this respect from time to time. ( C. C., § 139.)
2. The petitioner denies that a written notice of the order was ever served upon him. He does not deny that he in fact had notice thereof. And the plaintiff in her affidavit to obtain an order upon him to show cause why he should not be punished for contempt of Court in disobeying said order, states that said petitioner was present in Court when the same was made, and that he refused to obey it. The petitioner does not deny that a demand of payment of the amount ordered to be paid by said order of November 5, 1881, was made upon him. If he was present in Court when the order was made, and a demand was thereafter made upon him to comply with it, that was certainly sufficient to authorize a proceeding against him for contempt in not obeying it.
3. The objection that the order to show cause was not served by the Sheriff or some deputy of his, does not seem to be much relied upon, and we are not aware of any provision of the Code that requires it should be so served. Besides, it appears that petitioner appeared in Court in obedience to said order, and made response thereto.
4. The question whether or not the petitioner was able to comply with said order, was one of fact, to be determined by the Court making the order upon evidence. It appears that the parties had a hearing, and that the answer of the petitioner and the evidence taken were duly considered by the Court, which found that he was able to comply with said order, and was guilty of a contempt in not complying with it.
5. On the same day that the petitioner was adjudged guilty of a contempt and ordered to be committed therefor, he served upon the plaintiff's attorney, a notice of appeal from said order of November 5, 1881, for the disobedience of which, he was so adjudged guilty of a contempt, and it is claimed that by said appeal the proceedings in the contempt case were stayed. In no event would that be so, unless the undertaking required to be given by law for that purpose was duly executed and filed. The order appealed from in this case requires that the petitioner shall pay as alimony, sixty-seven dollars and fifty cents monthly, until the further order of the Court. It is not an order for the payment of a specific sum of money, but a continuous allotment of sums payable at regular intervals, for the support and maintenance of the plaintiff in the action of divorce and the children of the marriage, whose custody and care were awarded to said plaintiff. The petitioner executed and filed an undertaking in the sum of three hundred dollars on appeal, and another in double the sum which he was required to pay each month for alimony, which he claims is sufficient to stay the execution of the order pending the appeal. It is obvious, however, that that is not double the amount named in the order which requires that sixty-seven dollars and fifty cents shall be paid each month for an indefinite number of months. Whether any undertaking could be given which would operate as a stay of the execution of the order pending the appeal, or whether any appeal lies from such an order, are questions which do not necessarily arise in this case, and we therefore express no opinion upon them.
Petitioner remanded.