Opinion
04-18-1895
JERNEE v. JERNEE.
Thomas S. Anderson, for the motion. W. P. Voorhees, for respondent.
Application of Abbie N. Jernee, complainant in an action for alimony against William R. Jernee, to attach the sheriff of Middlesex county for contempt in neglecting to execute a warrant directing the imprisonment of defendant William R. Jernee to enforce payment of the alimony awarded.
Thomas S. Anderson, for the motion.
W. P. Voorhees, for respondent.
EMERY, V. C. It is admitted that the sheriff neglected to execute the warrant for commitment delivered to him in this case by retaining the defendant in custody after he had arrested him under the writ, and that he Improperly released him on bail. On this application of the complainant to punish him for contempt the counsel for the sheriff claims that the officer was not bound to execute the writ, because it was void. The invalidity of the writ is the consequence, as is insisted, of the omission of the warrant to specify the amount of alimony and costs to be paid by the defendant; and the direction of the writ to keep defendant in custody until the alimony and costs are paid is void, as being, on the face of the writ, uncertain, and therefore requiring the custody of the defendant under the writ, for an indefinite time. This uncertainty, it is insisted, renders the writ absolutely void, so that the sheriff was not bound to execute it, and cannot be held in contempt for neglecting to do so. The direction of the writ, after reciting the order for commitment of the defendant to jail, is as follows: "Therefore, we command you, that you take the body of the said William R. Jernee, and him safely and closely keep in your custody in the common jail of the county of Middlesex until he shall have paid to the said complainant (Abbie N. Jernee) the alimony now due her, and the costs of such contempt, to betaxed, and also a fine of five dollars for the use of the state, together with the costs of this writ, or until our said court shall make order to the contrary."
As to the invalidity of the writ, by reason of the failure to specify the amount of alimony then due, and the amount of the taxed costs, the question has been decided by Vice Chancellor Bird, on an application to discharge Jernee from confinement for this alleged defect in the order for commitment and in this warrant He refused the application, after full argument and consideration, and his decision thereon is binding. There is also, in addition to the reasons given in the vice chancellor's decision, one other reason which is, in my judgment, fatal to the contention of the sheriff that the writ was void for uncertainty. There is no uncertainty in this writ, as to the amount directed to be paid as a fine to the state; and the writ was as valid for defendant's arrest, so far as related to the payment of this $5, as if it had directed him to be held until he had paid $5,000, nor had the sheriff any right to disregard it. If any part of the direction of the writ is valid, the writ cannot be held void. The writ, therefore, was valid and the sheriff must be held to be in contempt The question as to the amount of fine to be imposed was discussed by counsel at the argument of the motion to attach; the complainant's counsel insisting that a fine should be imposed for the benefit of complainant equal to the amount of alimony and costs. The counsel for sheriff asked that only a nominal fine be imposed, inasmuch as the failure of the sheriff to keep defendant in custody was due to improper legal advice as to his duty given him by counsel for the defendant, and the defendant is now in custody, having surrendered himself after the return day of the warrant of commitment. The complainant's counsel deny the validity of this custody as an arrest under the writ, and are unwilling to accept it as valid on the part of their client, as it may affect their rights against the sheriff for the escape. I shall not consider this question, or attempt to decide the rights of the parties to the suit on this motion. The defendant is no party to this proceeding, and, for all that appears here, he may even now be contesting the validity of his retention in custody. This present application, as I shall consider it, relates to the original neglect of the sheriff to execute the process of the court; and I cannot now relieve him from the liability for this contempt by attempting to declare, on his motion, and in the absence of defendant, whether the arrest after the return is valid. Nor, on the other hand, can I treat this application as one which is carried on for the benefit of the complainant. The statute relating to sheriffs (Revision, p. 1104) and the chancery act § 68 (Revision, p. 116) seem to be intended to provide for securing the private rights of the parties, and the only aspect of the case now to be considered is the relation of the sheriff to the court whose process he has neglected to execute. The case seems to come within the provisions of section 69 of the chancery act (Revision, p. 116), directing that, if the sheriff shall not make return of writs according to their tenor, he shall be in contempt, and, before discharge, shall pay to the clerk a fine, for the use of the state, not exceeding $50, and the costs. This section, at least furnishes a rule that is equitably applicable to this case, and I shall therefore apply it I have considered the circumstances of the case, as to the amount of the fine, and will direct that for his contempt the sheriff pay a fine of $25 and costs.