Opinion
No. 34878.
April 13, 1942.
1. CONTEMPT.
Contempt proceedings are "quasi criminal" and their regularity must be adjudged in the light of the right of the defendant to be fully apprised of the nature of the action.
2. CONTEMPT.
A citation in contempt that makes no reference to the number or style of the suit nor otherwise makes specification of the acts constituting the alleged contempt is a nullity and a decree entered thereon in default of defendant's appearance is void.
3. CONTEMPT.
A citation that merely notified defendant that he must appear in answer to a petition charging contempt without apprising him of the suit out of which charge grew or specifying the acts allegedly constituting contempt was a nullity and a decree entered thereon in default of defendant's appearance was void, even though defendant might be presumed to know that contempt proceedings arose from his failure to make payments for support of his child.
APPEAL from the chancery court of Clay county, HON. JAMES A. FINLEY, Chancellor.
Frank A. Critz and B.H. Loving, both of West Point, for appellant.
The decree of the court finding the appellant guilty of contempt should be reversed on account of the insufficiency of the process.
Guess v. Smith, 100 Miss. 457, 56 So. 166; Ex parte Cheatham, 6 Ark. 531, 44 Am. Dec. 525; Globe Rutgers, etc., v. Sayle, 107 Miss. 169, 65 So. 125; Dogan v. Brown, 44 Miss. 235; McPike v. Wells, 54 Miss. 136; Crawford v. Redus, 54 Miss. 700; Sivley v. Summers, 57 Miss. 712; Monk v. Horne, 39 Miss. 103; Commercial Bank of Manchester v. Martin, 9 S. M. 622; Pounds v. Gartman Pendleton, 29 Miss. 133; Neil v. Wellons, 12 S. M. 650; 21 R.C.L. 1267.
The fact that appellant had actual notice of the pendency of the cause and when it was due to be tried did not make him a party. That fact did not help the jurisdiction of the court.
Burns v. Burns, 133 Miss. 485, 97 So. 814; McCoy v. Watson, 154 Miss. 307, 122 So. 368; McPike v. Wells, 54 Miss. 136; Jacks v. Bridewell, 51 Miss. 881.
Thompson McClellan, of West Point, for appellee.
We think that when this case is sifted down the proposition presented to the court is that whether or not the omission of the name of the complainant and the number of the cause is such error as to render the process in this case void or that such omission was harmless error in that the defendant was apprised of the time and place and court in which he was to make answer and also of the nature of the claim against him and that he was commanded to appear at said time, place and court. We maintain that the summons to both petitions gave to him the notice that is required under Section 2965 of the Code of 1930. We contend that the announcement in the case of Guess v. Smith, 100 Miss. 457, 56 So. 166, is controlling. That by the exercise of ordinary diligence the defendant appellant could have and should have informed himself of the contents of both the petition for the support of child and for citation for contempt and that he should not now be permitted to come here and defeat his obligation to contribute to the support of his sick child by said omissions which were harmless and from which he suffered no injustice as shown by his own actions and conduct. The process was ample to put him on notice and to support the decrees together with the proof offered at the hearings.
There is here involving the validity of a decree adjudicating appellant guilty of a contempt, and directing confinement in jail. By a former decree appellant had been directed to pay to appellee for the support of their child certain specified sums at stated intervals. The appellant being wholly in default, a sworn petition for citation as for contempt was filed against him by appellee. The trial court decreed that citation be issued, and the record contains what purports to be a compliance therewith. The citation is as follows:
"The State of Mississippi | SS "Clay County |
"The State of Mississippi to the Sheriff of Clay County:
Greeting:
"You are hereby commanded to summon Robert McKee if it to be found in your county, to be and appear before the Honorable Chancery Court of Clay County, at the office of Chancellor in the Courthouse at Tupelo, Miss., Lee County, on the 16th day of June, 1941, at ten o'clock A.M. and on the first day of the Term then and there to answer petition asking that he be cited for contempt of Court and further to do and suffer such things as shall be considered and ordered by the Court aforesaid in the premises.
"And have then and there this Writ: with an endorsement thereon of the manner in which you shall have served the same.
"Witness my hand and seal of said Court, at office in West Point this the 14th day of May 1941.
"L.H. Miller Clerk "(Seal) Mary W. Smith D.C."
Personal service on appellant is shown, but there was no appearance by pleading or otherwise. Decree adjudging the contempt and ordering imprisonment followed. Putting aside some minor irregularities as to the place for the hearing, which arose no doubt from an attempt to adapt a printed form to the special case, we come at once to the narrow question whether the citation is sufficient in this action.
Contempt proceedings are quasi criminal and their regularity must be adjudged in the light of the right of the defendant to be fully apprised of the nature of the action. Amis, Divorce and Separation in Mississippi, Sec. 276, p. 383; 17 C.J.S., Contempt, Sec. 78. A citation in contempt proceedings, which makes no reference to the number or style of the suit, nor otherwise makes specification of the acts constituting the alleged contempt, is a nullity, and a decree entered thereon in default of defendant's appearance is void. Grace v. State, 108 Miss. 767, 67 So. 212; Ex parte Redmond, 159 Miss. 449, 132 So. 328; Amis, op. cit., supra, Sec. 242; Griffith, Miss. Chancery Practice, Sec. 224. It is no answer to say that where a defendant is the husband of petitioner, it must be assumed that the defendant must, in turn, assume that the citation arose out of certain former litigation and that he knew whether and for what he was in contempt. We are dealing with a general and very salutary principle, compliance with which involves simple precaution on the part of the petitioner while non-compliance is potential with perplexity and inconsistent with due process.
In view of the necessity for a reversal of the decree in the contempt proceedings, we do not pass upon the validity of the original decree, conformity with which was sought by the petition for citation, and which is here collaterally attacked. It is relevant, however, to state that at the original proceedings the appellant was present in court.
Reversed and remanded.