CONTEMPT IN FAILING TO PAY ALIMONY.

Court of Appeals for Hamilton County.

#### In re J. Harry Whallon.

Decided, May 3, 1915.

*Jurisdiction*— Deprivation *of a Court of a Part of Its*Jurisdiction— *Does Not Affect Its Inherent Power to Enforce a Valid Deoree Theretofore Rendered*— Imprisonment *for Failure to Pay Alimony Not Imprisonment for Delt.*

1. The legislative act, taking away from the court of insolvency of Hamilton county its jurisdiction in the matter of divorce and alimony, did not deprive that court of jurisdiction in a proceeding for contempt in failing to pay a judgment for alimony, pronounced prior to the passage of said act.

2' Imprisonment for contempt in failing to pay a judgment for alimony in gross is not violative of any constitutional right of the person so imprisoned.

3. An order of commitment for contempt imports verity and, in the absence of any showing to the contrary in the record, such an or- . der is supported by the presumption that the court heard evidence, and, found that the defendant was able to pay the amount adjudged against him, before the order for his commitment for failure to pay was entered.

*W. A. Rinckhoff,*for respondent. •

*C. S.*Sparks, for Whallon.

Gorman, J.

This is a proceeding in error to reverse a judgment of the common pleas court discharging J. Harry Whallon from the *168custody of the sheriff of Hamilton county, who held him in the county jail under a judgment and commitment of the insolvency court of Hamilton county.

On December 23, 1913, the insolvency court of Hamilton county in an action for divorce and alimony brought by Ella J. Whallon against her husband, J. Harry Whallon, then pending in said court, decreed a divorce to said Ella J. Whallon on account of the aggressions of her husband, and awarded her in gross the sum of $175 as and for alimony and attorneys' fees, and rendered judgment in her favor for said sum.

The order and judgment of the court as to the payment of the alimony not having been complied with, a rule was issued on the motion of the wife, directing the husband, J. Harry Whallon, to show cause in said insolvency court on or before March 6, 1915, at 10 o 'clock a. m., why attachment for contempt -should not issue against him for disobedience of the said order directing him to pay said sum of $175. Whallon was thereupon brought into court, charges of contempt filed against him, and he was found guilty of contempt of court for failing to pay the sum of $150, the balance unpaid of said judgment for alimony. He was thereupon committed to the jail of Plamilton county until said sum should be paid, or until the further order of the court, or until discharged by operation of law.

Thereupon, on March 16, 1915, said Whallon sued out a writ of habeas corpus in the common pleas court, and that court found that he was illegally restrained of his liberty, and discharged him from custody.

The case is now here on error to reverse that judgment.

The ground upon which the court of common pleas held the detention of Whallon to be illegal, was that the insolvency court of Hamilton county had no jurisdiction to commit said (Whallon, because by the act of the General Assembly passed February 6, 1914 (104 O. L., 179-180), that court was deprived of jurisdiction in actions for divorce and alimony after December 31, 1914, and the order of the insolvency court in committing said Whallon for failure to pay alimony having been made after December 31, 1914, in an action for divorce and alimony, the same was null and void for want of -jurisdiction to make the order.

*169At the time the decree for alimony was rendered, December 23, 1913, the Court of Insolvency of Hamilton County undoubtedly had jurisdiction to hear and determine actions for divorce and alimony under the delegation of power and authority contained in Section 1637, Sub. 9, so that the decree awarding Mrs. Whallon alimony was a valid, binding judgment and order, and enforcible against J. Harry Whallon either by execution or by attachment and commitment for failure to obey the same.

Did the insolvency court by the amendment of said Section 1637, Sub. 9, on February 6, 1914, lose jurisdiction after December 31, 1914, to enforce its judgments, orders and decrees made prior to that date? We think it did not, but that every court has inherent power and authority to enforce its decrees if it had jurisdiction to make the order or decree. The General Assembly is without authority to abridge or- deprive a court of power and authority to enforce its valid decrees, orders and judgments by contempt proceedings or such other proceedings as are necessary to establish its authority and respect as a court. It may create or abolish courts having jurisdiction inferior to the Supreme Court, and it may limit or enlarge their jurisdiction and powers; but so long as the court continues to exist as a court, it can not be deprived of its inherent power to enforce its decrees, orders and judgments. If this power should-be taken from a court, then it would cease to be a court and would lose the respect and dignity with which the people have clothed it.

> “The power to enforce its decrees and orders arose upon the creation of the court because it was implied in the very conception of the court.”

■ It was well said by Judge Shauek in the case of *Hale*v. *State,*55 O. S., 210, at page 213:

> “The difference between the jurisdiction of courts and their inherent powers is too important to be overlooked. In constitutional governments their jurisdiction is conferred by the provisions of the constitutions and of statutes enacted in the exercise of legislative authority. That, however, is not true with respect to such powers as are necessary to the orderly and efficient exercise of jurisdiction. Such powers, both from their nature and their ancient exercise, must be regarded as inherent. They do *170not depend upon express constitutional grant, nor in any sense upon the legislative will. The power to maintain order, to secure the attendance of witnesses to the end that the rights of parties may be ascertained, and to enforce process to the end that effect may be given to judgments, must inhere in every court or .the purpose of its creation fails. Without such power no other could be exercised.”

See also: *Republica*v. *Oswald,*1 Dallas (Pa.), 343.

Numerous authorities might be cited to establish the elementary proposition that all courts have inherent power to enforce their decrees, orders and judgments, but we think it sufficient to cite only a few of them. *Am. & Eng. Ency. of Law,*2d Ed., Vol. 8, 28, 29; same, Vol. 7, p. 30; *State*v. *Rorew & Hart,*24 W. Va., 416; *Little*v. *State,*90 Ind., 338; *People*v. *Wilson,*64 Ill., 195.

This power to enforce the decrees and orders of a court, even by contempt proceedings if necessary, the Legislature can not take away, because it can be exercised regardless of the consent of the Legislature. If power distinguished from jurisdiction exists independently of legislative action, it will continue to exist notwithstanding legislation.

The insolvency court of Hamilton county still lives. It has not been abolished, nor have its powers to enforce its valid orders been abridged or curtailed. The order requiring Whallon to pay to his wife this sum of money is a valid subsisting order, and the court had ample power to compel Whallon to obey it.

What might be the status of a decree or judgment granting a divorce or alimony since January 1, 1915, we do not decide, as that question is not presented to us by the record in this case. The jurisdiction of that court to hear and determine divorce and alimony actions since December 31, 1914, is not raised by the record.

The second question involved in this case is the power or authority to punish as for a contempt of court the refusal to'pay a judgment for alimony in gross. Is this a judgment for a debt, which can only be enforced by execution and levy on property, and which can not be enforced by imprisonment in contempt proceedings? We think that this question has been decided adversely to the contention of counsel for J. Harry

*171Whallon in the eases of *Cook*v. *Cook,*66 O. S., 566, and *Luebbering*v. *State,*19 C. C., 658.

In the ease of *Cook*v. *Cook,*the second, paragraph of fne syllabus reads as follows:

> “A final money decree for alimony is not a debt within the purview of the constitutional inhibition against imprisonment for debt, but is such an order as that, under favor of Section 5610, R. S. (12137, O. C.), punishment as for a contempt may follow wilful failure to comply with it.”

In the case of *Luebbering*v. *State,*19 C. C., 658, the circuit court of this county-held that the court has power to imprison for failure to pay a judgment-in gross awarded as alimony.

It may therefore be said to be fairly established in this state that imprisonment for contempt in failing to pay a judgment for alimony in gross, is not violative of any constituí' mal right of the person duly imprisoned on such a charge o! contempt for failure to obey the order.

Thirdly, it is claimed that the record fails to show thai Vv hallon was able to pay the alimony at the time the court of iusolveney ordered him committed, and that the fact should appear in the record that he is able to pay, before any valid c<-mintment can be made.

The order of commitment for contempt imports verity, and it will be presumed that the court heard the evidence and found the defendant was able to pay the amount adjudged agains! him. *Galley*v. *Galley,*13 C.C.(N.S.), 522. It was inuimbent upon the defendant Whallon to establish his inability to pay, *¡*tid in the absence of a bill of exceptions containing tlv evidc ice, if any was offered, the presumption will be that 1 ie defendant failed to establish his inability to pay. *Galley*v. *Galley,*13 C.C. (N.S.), 522.

Furthermore, the failure of the record to disclose ability to pay, on the part of Whallon, can not be raised in this habeas .corpus proceeding. This question would have to be raised in error proceedings. If the court had jurisdiction of the person of Whallon and of the subject-matter — contempt of court — then any and all errors claimed to exist in the record must be taken advantage of by error proceedings, and not in a collator a: attack. *172*Effinger*v. *State,*11 C. C., 389; *Bailey on Habeas Corpus,*Vol. I, pp. 284-288.

Habeas corpus can not be employed to review errors of tbe court. *Am. & Eng. Ency. of Law,*2d Ed., Vol. 15, p. 172; *State*v. *Haslip,*Wright’s R., 500.

If the court has jurisdiction of a cause and proceeds irregularly or in an erroneous manner, the remedy is not habeas corpus, but proceedings in error. *Lillibridge*v. *Stewart,*7 C.C.(N.S.), 452.

So far as we are advised by the record in this case Whallon was able to pay. We have a right to presume that the court of insolvency so found before ordering him committed; but if the court did not so find, then error proceedings is the proper remedy to employ to raise the question.

Being satisfied that the court of insolvency had jurisdiction of-the person of Whallon, and of the subject-matter — contempt— we conclude that the court of common pleas erred in discharging J. Harry Whallon from custody, and the judgment of that court is reversed.

Jones (E. H.), J., and Jones (Oliver B.), J., concur.