Ex Parte Gardner , 22 Nev. 280 ( 1895 )

The facts are stated in the opinion. The wife of petitioner brought, an action against him for a divorce in the district court of Lyon county. The complaint also asks for the custody of the infant child of the parties.

On January 26, 1895; while the action was pending in Lyon county, the district court of Ormsby county made the following order: "Ida L. Gardner v. James H. Gardner. In this entitled cause, and by consent of William Woodburn, Esq., counsel for plaintiff, and J. D. Torreyson, Esq., of counsel for defendant, it was ordered that the cause herein be, and the same is hereby, transferred from the county of Lyon to the county of Ormsby, State of Nevada, and set for hearing February 12, 1895."

On February 12th, while the trial of the action was progressing before the court in Ormsby county, the attorney for the plaintiff, upon certain affidavits, asked an order of the court directing the defendant to deliver the custody of the child to the plaintiff during the pendency of the case, and an order was made to that effect. This order not having been complied with, on February 14th the court ordered the defendant to produce the child in court at 3 o'clock of that day. By subsequent orders the time for doing this was extended until February 23d, when, the defendant failing to produce the child, the following order was made: "Ordered that the defendant, James H. Gardner, is guilty of contempt of court, and that he be confined in the Lyon county jail, Lyon county, State of Nevada, until he produces his child in court in compliance with an order heretofore made."

Subsequently an order was issued, purporting to be made in the district court of Lyon county, but certified by the clerk of Ormsby county to be a copy of the judgment of contempt on file in his office, directing the sheriff of Ormsby county to arrest the petitioner, and deliver him to the sheriff of Lyon county, where he was to be confined until he should produce the child. Under this order he has been arrested by the sheriff of Ormsby county, and from his custody he now asks to be discharged.

As so often decided, the only question we can consider upon this application is whether the district court of Ormsby county, which really made the order for the petitioner's arrest and confinement (although there seems to he some uncertainty in the orders as to which court the action was then pending in), had authority or jurisdiction to do so. We are of the opinion that it did not. Notwithstanding that Lyon and Ormsby counties are both in the same judicial district, the courts of those counties are still separate and distinct. The only thing they have in common is that the same judge presides over both. A judicial district is simply a political division, provided for by the constitution, but arranged by the legislature, for the purpose of economizing in the number of judges. In fact, the inclusion of any two counties in the same district may almost be said to be accidental.

The judge alone does not constitute a "court." Burrill defines the term thus: "A 'court' may be more particularly described as an organized body with defined powers, meeting at certain times and places for the hearing and decision of causes and other matters brought before it, and aided in this, its proper business, by its proper officers; viz.: Attorneys and counsel to present and manage the business, clerks to record and attest its acts and decisions, and ministerial officers to execute its commands and secure due order in its proceedings."

Proceedings at another time and place, or in another manner than that specified by law, though in the personal presence and under the direction of a judge, are coram nonjudice, and void. (State v. Roberts,8 Nev. 239; Wightman v. Karsner, 20 Ala. 446;Brumley v. State, 20 Ark. 77.) It follows that the district court of Lyon county could not possibly have had any authority to sit as a court in Ormsby county, even supposing it had attempted to do so. Section 21 of the practice act (Gen. Stats., sec. 3043) provides that "the court may on motion change the place of trial." This, of course, means the court where the action is pending. If is not possible for one court to reach out and draw to itself jurisdiction of an action pending in another court, even when done with the consent of parties; for that would be to confer jurisdiction by consent, which, so far as subject matter is concerned, can never be done.

Not having jurisdiction of the action, it had no jurisdiction to order the defendant to produce the child. (Walton v.Dereling, 61 Ill. 201; In re Ayers, 12.8 U. S. 443;Piper v. Pearson, 2 Gray, 120.)

Having no jurisdiction to make the order, it was not a contempt for the petitioner to fail to comply with it. Mr. Spelling, in his work on Extraordinary Relief (sec. 1243). says: " Where a court attempts by its process of contempt to punish a party for his refusal to comply with an order which that court had no authority to make, the original order being void for want of jurisdiction, the order punishing for contempt is also void, and, if the proceeding for contempt result in imprisonment, the prisoner may he discharged by another court on habeas corpus." See, also, Rap. Contempt, sec. 16.

It is ordered that the petitioner be discharged.