Opinion
File No. 8403.
Opinion filed June 12, 1941.
Contempt.
An order for defendant to pay money to plaintiff under penalty of being held in contempt for failure to pay was unauthorized in absence of finding that defendant had money with which to pay.
Appeal from Circuit Court, Perkins County; Hon. Frank Gladstone, Judge.
Proceeding by Curtis S. Harrod against George R. Alexander. From an order for plaintiff, defendant appeals.
Reversed.
C.M. Parsons, of Bison, and C.G. Carrell, of Lemmon, for Appellant.
Atwater Helm, of Sturgis, for Respondent.
In a novel proceeding wherein the jurisdiction of the court to act in any manner is seriously questioned, the court entered a "decision and order", as follows: "Ordered, Adjudged and Decreed: That you the said George R. Alexander, be and you are hereby required to forthwith pay to the plaintiff the said sum of Six Hundred Fifty-four 52/100 dollars ($654.52) together with interest at six per cent (6%) per annum from date hereof, and you are hereby directed to pay the same to the plaintiff, or his attorneys Atwater Helm, under penalties subscribed for contempt of Court * * *."
We pass the question of whether the above order violates Section 15 of Article 6 of our Constitution, which provides: "No person shall be imprisoned for debt arising out of or founded upon a contract."
There was no finding by the trial court that the defendant had money with which to comply with the court's order. Under the rule announced in Aberdeen Clothing Company v. Just, 32 S.D. 560, 143 N.W. 900, this order of the trial court to pay money under penalty of being held in contempt for failure to pay, without a finding that the defendant had money with which to pay, was unauthorized.
The order appealed from is reversed.
ROBERTS, WARREN, RUDOLPH, and SMITH, JJ., concur.
POLLEY, P.J., not sitting.