Fritz v. Fritz , 45 S.D. 392 ( 1922 )

POLLEY, J.

Prior to the 10th day of August, 1921, a decree was entered in this action, which among other things required plaintiff to pay to defendant certain alimony and suit money specified therein, and awarded to defendant the nine year old son of plaintiff and defendant. No part of said sums- of money having •been paid, and no excuse being shown why payment had not been made, the trial court on the above date issued a citation to plaintiff, requiring him to show cause why he should not be adjudged to be in contempt of court for his failure to comply with the requirements of said decree. This citation was made on an affidavit of the defendant. Plaintiff filed counter affidavits, and a hearing was had. At the conclusion of such hearing the court made findings of fact to the effect that plaintiff had failed to comply with the requirements of said decree, and that such failure was willful and contumacious. From such findings the court made a conclusion of law to the effect that, because of such contempt, plaintiff should be committed to jail. Judgment was entered accordingly, and from such judgment the plaintiff appeals to this court.

[1] It is first contended by appellant that the findings of fact are not supported by the evidence. Whether such findings are supported by the evidence depends upon which of the parties —plaintiff or defendant — was telling the truth at the hearing on the order to show cause. The trial court found in favor of defendant, and such finding, not being contrary to the clear preponderance of the evidence, will not be disturbed by this court.

[2] It is contended by appellant that the attempted enforcement of the judgment by contempt proceedings is a violation of section 15, art. 6, of our Constitution, which provides that:

“No person shall be imprisoned for debt arising out of or founded upon contract.”

This is not a debt arising out of or founded on contract, but out of an obligation, created by law, to support his wife and minor child.

[3] Appellant did not appear in court in person in response to the citation requiring him to show cause why he should not be punished for contempt for his failure to obey the final judgment in the case. He now contends that, because he was not present, the court was without jurisdiction to issue the commitment. The citation was personally served on appellant. This gave thg court jurisdiction to make such order as appeared to be appropriate in the case. . •

That the trial court possesses the inherent power to punish contempts by fine or imprisonment was settled by this court in State v. Knight et al., 3 S. D. 54 N. W. 412, 44 Am. St. Rep. 809. The only excuse offered by appellant at the hearing for not having complied with the decree of the court was his financial inability to pay the sums required by said decree.

He has shown no valid reason why the- order appealed from should not be enforced, and the same is affirmed.