DocketNumber: 15910.
Citation Numbers: 44 S.E.2d 257, 202 Ga. 675, 1947 Ga. LEXIS 502
Judges: Candler, Wyatt
Filed Date: 9/9/1947
Status: Precedential
Modified Date: 10/19/2024
On November 26, 1946, Shirley Petrek Mendel filed a suit for temporary and permanent alimony against her husband, James H. Mendel Jr. On this petition temporary alimony was awarded: and subsequently, on March 24, 1947, Mrs. Mendel sought to have her husband adjudged in contempt of court, alleging in her application that he was in arrears in the payment of alimony, and that he, while within the jurisdiction of the court, was preparing to leave the State; and she prayed that the writ of ne exeat issue, and that he be adjudged in contempt of court. In the application seeking a judgment of contempt, the applicant did not pray for a rule nisi, requiring the defendant *Page 676 to appear and show cause why he should not be adjudged in contempt of court; and no rule nisi was issued. On the same date when the application was filed, the judge of the superior court issued an order, directing that the writ of ne exeat issue and summarily adjudging the defendant in contempt of court. On May 26, 1947, counsel for the husband moved the court to vacate and set aside so much of the judgment as adjudged the husband in contempt, upon the grounds that no rule nisi had ever been issued, and that the defendant had never been allowed an opportunity to enter any defense which he might have at law, but had been adjudged in contempt without notice or a hearing. This motion was disposed of on the wife's verified application and the order thereon, without the introduction of other evidence. The trial judge overruled the motion to set aside the judgment, the order being in the following language: "Application being made by Hoke Smith, as counsel for defendant, to set aside the above and foregoing order adjudging James Harold Mendel Jr. in contempt, after a hearing, it is ordered and adjudged that said motion to set aside be and the same is hereby denied — it being made to appear to the court that said Mendel is still in arrears and is without the jurisdiction of the court — this court having stated at this hearing that, if counsel for James Harold Mendel Jr. will advise the court of the date when said Mendel will appear in court to offer evidence in support of his said motion, the court will protect him from arrest until said hearing is completed." To this judgment the husband excepted. Held:
1. The motion to dismiss the writ of error, upon the ground that it was prematurely brought, while the cause was still pending in the court below, is denied. While, as urged by the defendant in error, the alimony proceeding is still pending in the court below, the application filed by the wife to have her husband adjudged in contempt was an independent proceeding, though founded on the alimony proceeding; and it is now well settled that, where a husband has been adjudged in contempt for a failure to pay alimony, he may have the judgment reviewed by a direct bill of exceptions, although the alimony suit is still pending. See Davis v. Davis,
2. Attachments for contempt are either civil or criminal, or both. An "attachment for contempt for failure to pay an amount of alimony ordered by the court is a remedial proceeding to enforce its payment *Page 677
for the benefit of one of the parties to the suit. This is proceeding is not a penal process to punish as for contumacious conduct toward the court, but to enforce the payment of the sum ordered but not paid. . . If the order is violated and the respondent fails to obey it, before he can be punished as for a civil contempt he has the right to be heard and purge himself of the contempt, if any has been committed, or to show any valid reason why he should not be adjudged in contempt. But surely a judgment of a court can not subject one to imprisonment for a future act, or failure to act, without a hearing." Davis v. Davis,
Judgment reversed. All the Justices concur, except Wyatt, J., who took no part in the consideration or decision of this case.
Kingsbery v. Ryan , 92 Ga. 108 ( 1893 )
Davis v. Davis , 1912 Ga. LEXIS 172 ( 1912 )
Irby v. Irby , 1929 Ga. LEXIS 26 ( 1929 )
Foster v. Foster , 178 Ga. 791 ( 1934 )
Van Dyke v. Van Dyke , 1904 Ga. LEXIS 768 ( 1904 )
Harris v. Harris , 205 Ga. 105 ( 1949 )
Anthony v. Anthony , 240 Ga. 155 ( 1977 )
Barnes v. Tant , 217 Ga. 67 ( 1961 )
Ensley v. Ensley , 239 Ga. 860 ( 1977 )
Gibson v. Gibson , 234 Ga. 528 ( 1975 )
Moody v. State , 131 Ga. App. 355 ( 1974 )