CHARLESTON.

#### Smith v. Smith.

Submitted February 13, 1918.

Decided February 26, 1918.

1. *Contempt*— Writ *of Error*— Statute.

Section 4, of eli. 160. of the Code, impliedly withholding or de- • nying a writ of error to a judgment for contempt consisting of non-performance of, or disobedience • to, a judgment, decree or order, is limited in its operation to judgments, decrees and orders rendered, pronounced and entered by courts having jurisdiction to render, pronounce and enter them, and to such valid judgments, decrees and orders as the court has jurisdiction and power to enforce by process of contempt, (p. 762).

2. *Equity*— 1lemedies—Jurisdiction.

Statutory abrogation of a remedy afforded by general equity jurisprudence, denies to courts of equity, power and jurisdiction to adopt and use it. (p. 764).

3. *Same*— Deeree *for Payment of Money*— Statute.

Section's 1 and 2, of <sh. 139 of the Code, deny to courts of equity jurisdiction and power, previously accorded them by general equity procedure, to enforce decrees for the payment of money, by process of contempt, (p. 765).

4. *Divorce*— Alimony—Lien—Contempt.

Though a decree for alimony constitutes a lien on the real estate of the party against whom it is pronounced and may be enforced by execution, it is a decree'not merely for the payment of money, but for the payment of money in discharge ■ of the high marital duty of maintenance, wherefore it may be enforced by attachment for contempt also. (p. 765).

5. *Same*— Alimony—Contempt—Error.

A writ of error does not lie to a judgment of eontempt for disobedience of a decree requiring payment of alimony, (p. 765).

6. *Contempt*— Eefvsal *to Perform Order or Deeree*— Equity *Jurisdiction.*

*A*court of chancery may, by proper procedure,, commit a disobedient or recalcitrant litigant for refusal to perform an affirmative act lawfully required of him by its decree,, for the benefit of the opposite party to the suit, by an order entered upon its own records, under the style of the cause in which such decree was pronounced, as a means of coercing performance of the act so required. In so far as the decisions in *State*v. *Fredloclc,*52 W. Va. *762232, *State*v. *Cimmnghwm,*33 W. Ya. 607, *State*v. *Irrovn,*30 W. Va. 404, *State*v. *Frew and- Hart,*'24 W. Va. 416 and *State*v. *Bridge Company,*16 W. Va. 864, deny such jurisdiction and power to courts of chancery, they are disapproved and overruled, (p. 768).

7. *Same*— Nature *of Proeeedmg*— Committal.

In such cases, the committal is not deemed in law to he punishment for any criminal offense. The contempt for which it is inflicted is civil in its nature and only incidentally involves an offense to the court or the public. ' (p. 770).

Error to Circuit Court, Roane County.

Action by Laura M. Smith against B. C. Smith. From a . judgment of committal for contempt of court by reason of the nonpayment of installments of alimony, defendant brings error.

*Writ of error dismissed.*

*Charles E. Hogg,*and *Charles J. Hogg,*for plaintiff in error.

*H. C. Ferguson,*for defendant in einor.

POFFFENBARGER, PRESIDENT: .

A judgment of committal for a contempt of court, effected by non-payment of installments of alimony, decreed against the plaintiff in error, constitutes the subject matter of this writ of error; and one very vital question arises on the motion to dismiss the writ as having been improvidently awarded.

A judgment for contempt of • a trial court, consisting of disobedience of its judgment, decree or order, is not reviewable in the appellate court, if the trial court had jurisdiction of the cause in which it rendered, pronounced or entered the violated judgment, decree or order, and did not exeeeed its jurisdiction in doing so. *State ex rel.*v. *Baltimore & Ohio Ry. Co.,*73 W. Va. 1; Code, ch. 160, sec. 4.

Full acquiescence in the foregoing proposition is evidenced by the brief filed for the plaintiff in error; but it is earnestly insisted that the contempt .procedure complained of was action in excess of the jurisdiction of the court, because, it is said, see. 1, of eh. 139, of the Code, has stripped courts of *763equity of their power to enforce decrees for alimony by such procedure. That section places a decree for land or personal property or for the payment of money on the same footing as a judgment for such property or money,, and then proceeds as follows: “But a party may proceed to carry into execution, a decree or order in chancery, other than for the payment of money, as he might have done, if this and the following section had not been enacted.” The next section makes the beneficiaries of decrees requiring the payment of money, judgment creditors, and authorizes issuance of executions thereon.

If the construction contended'for should be conceded, it may not follow that a writ of error lies to a judgment in a contempt proceeding; for the statute expressly withholds a writ of error to a judgment for a contempt effected by disobedience of a judgment, decree or order. It reads: “To the judgment of a circuit court, for a contempt of court, other than for the non-performance of, or disobedience to, a judgment, decree or order, a writ of error shall lie from the supreme court of appeals. ’ ’ Code, ch. 160, sec. 4. *State ex rel.*v. *Baltimore & Ohio Ry. Co.,*73 W. Va. 1, recognizes an implied exception to this statute founded upon lack of jurisdiction in the circuit court, but the lack of jurisdiction, constituting the ground of the exception, as defined in that case, pertains to the judgment or decree for enforcement of which the contempt proceeding is invoked. That decision necessarily denies to the statute in question a part of the force and effect literally imported by its terms. If an exception thereto can be validly founded upon lack of jurisdiction to pronounce the decree for enforcement of which contempt procedure is x*esorted to, it is difficult to see any reason why lack of jurisdiction in the process of enforcement would not constitute a sufficient basis for another or further exception. In the lat-ter case, the lack of jurisdiction would be more clearly and directly involved, than in the former. In neither,,is there any foundation for it in the terms of the statute. At the same time, it must be remembered that a judgment or decree rendered without jurisdiction, is a nullity, wherefore it may be said there is no judgment or decree, in such ease, to be en*764forced. On tbe other hand, when the judgment or decree is not questioned and its binding force is beyond 'doubt, there is an order of the court which the party proceeded against is bound to respect and obey. Nevertheless, if there is no jurisdiction or power to enforce obedience, by the means adopted, the party proceeded against is under no duty to obey in the particular manner in which the contempt proceeding endeavors to make him perform. Obviously, therefore, there is lack of power or jurisdiction of the court in either casé; and, if proper construction results in an implied exception to the operation of the statute in the one instance, it must necessarily do so in the other. Properly read, therefore, the statute withholds a writ of error to a judgment for contempt consisting: of non-performance of; or disobedience to a judgment, decree or order, if the court rendering it had jurisdiction to pronounce it and has jurisdiction and power to enforce it by contempt procedure. All judgments, decrees and orders are not enforceable in that way.

Every act of a court founded upon an erroneous interpretation of a statute or a misconception of the common law and variant therefrom, is not void for want of jurisdiction. . It is familiar law that a court has as much -power to decide erroneously as it has to decide correctly. Mere errors in decisions upon questions of law are not acts in excess of jurisdiction. In some instances, however, they are. In the determination of the meaning of laws pertaining to their own power and jurisdiction, courts decide and act at their peril. On the other hand, in administering law applicable to the rights of the litigating parties, their acts founded upon erroneous interpretations of laws are, ordinarily, mere errors of judgment. These propositions are so self-evident and so thoroughly attested by the decisions of this and other courts, that authority for them need not be cited.

Courts derive their authority and powers from the constitution and laws of the state and, unless the power or authority of a court to perform a contemplated act, is found therein, the act, if done, is *coram non judice.*7 R. C. L., p. 1030; *N. & W. Ry. Co.*v. *Pinnacle Coal Co.,*44 W. Va. 574. In the absence of a .statutory modification or abrogation, *765courts' of general jurisdiction have all the powers conferred upon them by the common law, but such remedies and powers as the constitution or statutes have abrogated, they do not possess. Obviously, therefore, any effort on the part of a court to employ an abrogated remedy, formerly permitted to it by the common law or general equity jurisprudence, would be an act in excess of its jurisdiction.

The statute invoked in resistance of' the contempt procedure manifestly deals with remedies as well as rights and impliedly forbids enforcement of a decree or order in chancery for the payment of money, otherwise than by execution. It makes the decree the'equal of a judgment and declares it shall be embraced by the word “judgment” whenever it is used in certain chapters. It also makes the person entitled to any decree or order requiring the payment of money, a judgment creditor, even though the money may be required to be paid into a court, or a bank, or other place of deposit. In all such cases, it authorizes an execution on the decree or order. Furthermore, the decree becomes a lien upon the real estate of the party against whom it is pronounced. Having done all this, it then declares that the party in whose favor it is may proceed to carry into execution, a decree or order in chancery, other than for the payment of money, as he might have done before the passage of the act. This necessarily implies that he cannot so enforce a decree for the payment of money. Manifestly, therefore, power to enforce such a decree by process of contempt has been abrogated and no longer exists. When such remedy is available, it is the court’s remedy or process. Denial thereof to a party necessarily carries denial of power in the court to award it. Jurisdiction formerly existing is, to that extent, abrogated or withdrawn hy the statute.

An overwhelming weight of authority, however, makes a decree for alimony more than a mere decree for the payment of money. “It has frequently been insisted that a decree for alimony is in fact a debt, and therefore payment should not be enforced by an attachment for contempt where the eonsti-tution prohibits imprisonment for debt. But it is uniformly held, and such is the true doctrine, that the decree for alimony *766is an order of the court to the husband compelling him to support his wife by paying certain sums, and thus perform a public as well as a marital duty. Such decree is something more than an ordinary debt or judgment for money. It is a personal order to the husband, similar to an order of the court to one of the officers- or to, an attorney. The imprisonment is not alone to enforce the paymenet of money but to punish the disobedience of the party; and the order is not, therefore, a debt, within the meaning of the constitution. ” Nelson, Div. *&*Sep., sec. 939. “Objection has been raised to.the.enforcement of a judgment, order or decree for alimony by contempt proceedings, on the ground that alimony is a debt within'the meaning of statutes and constitutions which prohibit imprisonment for debt. By the great weight of authority, however, alimony is not considered a debt within such meaning.” 3 Ency. L. *&*P. 181; “It is sometimes held that where the statute provides for execution and other processes for the collection of alimony, that imprisonment for contempt cannot be resorted to as an additional remedy. But the corréet interpretation is that the statute conferring additional remedies did not deprive the courts of their inherent power to enforce such order. ” Nelson, Div. & Sep., see. 939. These quotations from text books are sustained by abundant authority. In some of the .states having statutes similar to ours, enforcement by attachment for contempt is limited to cases in which the decree cannot be otherwise enforced. In Illinois, it is not permitted if payment is secured. *Andrews*v. *Andrews,*69 Ill. 609. In New York, the moving party is required to show, not only that the husband has refused to comply with the order, but also that the payment cannot be enforced by execur tion or sequestration, or a resort to the securities. *Sanford*v. *Sanford,*44 Hun. 363; *Isaacs*v. *Isaacs,*61 Hun. Pr. 369; *Whitney*v. *Whitney,*11 N. Y. Supp. 583; *Mahon*v. *Mahon,*18 J. *&*S. (N. Y.) 92. In Iowa, Michigan and Nebraska, the courts seem to hold that, under no circumstances, can a decree for alimony be enforced by process of contempt. *Bailey*v. *Badley,*69 Ia. 77; *Segear*v. *Segear,*23 Neb. 310; *Carnahan*v. *Carnahan,*(Mich.) 107 N. W. 73.

Under our statutes, a decree for ailmony is more than a *767mere decree for money. Upon decreeing the dissolution of a marriage or a divorce of either class, the court may make such further decree as it shall deem expedient, concerning the estate and maintenance of the parties, or either of them, Code, ch. -64, see. 11. The relation assumed or recognized by this statute, as constituting the basis of the right to be vindicated by the decree, is not. that of debtor and creditor. It is a duty of maintenance imposed by the marital relation, from which the divorce does not necessarily exonerate the parties. The statute empowers the court decreeing the divorce, to enforce performance of the duty of maintenance,' after the separation or severance of the marriage relation. Authority is conferred upon the court, not merely tó decree money as alimony, but to make any decree it may deem expedient, concerning maintenance. Enforcement of the lien of the decree may involve ruinous delay and execution may be unavailing, and yet the delinquent party may have it in his power easily to raise and pay the money. Power to make such decree as the court deems expedient concerning maintenance, obviously goes beyond the mere award of money as a debt and reaches the case supposed. The decree is for maintenance, not mere money. The money decree is a means to an end, the real purpose of the decree, maintenance. Its pecuniary quality makes it a lien' and the basis of an execution, as this court has held, but these characteristics do not necessarily imply absence of others. It may consistently be a decree for money and, in addition thereto, a decree for support, not fully effectuated by execution and enforcement of the lien on real estate.

In view of this conclusion warranted by the weight of judicial opinion and the liberal terms of the divorce statute, there is no lack of jurisdiction, and, hence, no right of review by writ of error. If the decree goes beyond the ability of the plaintiff in error, in its requirements, an application to the court for relief by a modification of its terms and provisions, would have forestalled and prevented the procedure for contempt. Error in the court’s action upon that application could have been corrected on an appeal. When the court has jurisdiction in all respects, the party'subject to a decree en*768forceable by attachment for contempt, must obey the decree or get rid of it. The statute gives him no right to withhold performance by disobedience and a writ of error to the judgment for contempt. The former is a contempt of the court and the statute denies him the latter. *State ex rel.*v. *Baltimore & Ohio Ry. Co.,*cited.

*■A*careful reading of the opinion in *Cariens*v. *Cariens,*50 W. Va. 113, fails to disclose an assertion of lack of power in the trial court to modify a decree for alimony, entered contemporaneously with a decree of divorce, upon 'facts subsequently arising. Such a decree is declared to be conclusive upon the parties, as to all facts existing at its date, but power in the court to discharge the husband from payment, for good cause'subsequently accruing, is affirmed in unequivocal terms. As to the power of the court, respecting alimony, the statute deals with both classes of divorce, in exactly the same terms, wherefore the legislature cannot be deemed to have intended to withhold or deny right to modify the decree in one class any more than in the other. Moreover, in *Henrie*v. *Henrie,*71 W. Va. 131, a majority of this court expressed the opinion that the statute does not deny such power.

Entry of the order complained of in the chancery order book and under the style of the divorce suit is relied upon as a fatal and jurisdictional departure in the proceeding. Our decisions uniformly say every contempt proceeding is criminal in its nature and, after issuance of the rule, should be conducted in the name of the state and recorded in the law order book. *State*v. *Fredlock, 52*W. Va. 232; *State*v. *Cunningham,*33 W. Va. 607; *State*v. *Irwin,*30 W. Va. 404; *Ruhl*v. *Ruhl,*24 W. Va. 279; *Craig*v. *McCulloch,*20 W. Va. 148; *State*v. *Harper’s Ferry Bridge Co.,*16 W. Va. 864. In each of these cases except *Ruhl*v. *Ruhl,*the alleged contempt consisted of the doing of a forbidden act and the object of the proceeding was punishment. The contempts were primarily criminal, rather than civil, in their natures, and the.purpose of the procedure was not mere enforcement of performance of an affirmative act or duty required by a decree. When the disobedience consists of failure to perform a decree in favor of the opposite party, the contempt is civil in its main fea*769tures, though there is an incidental element of criminality in it. In *Ruhl*v. *Ruhl,*the defendant was proceeded against for failure to obey a decree for payment of money, but the decree was void for lack of jurisdiction in the court in which it was entered. The judgment of contempt was entered in the chancery order book, under the style of the main cause, and this court declared the contempt proceeding erroneous, not void, for that reason, but void and .without foundation in law, because the decree violated was void. Point 3 of the syllabus in *State*v. *Irwin,*30 W. Va. 404, seems to say a proceeding so entered is void for ivant of jurisdiction in the chancery court, and the opinion, at page 420, declares it irregular and says the law side of the court only has jurisdiction. The alleged contempt in that case was primarily criminal and the proceeding contemplated punishment only. In that decision, the court, going far beyond the case presented by the record, asserted that all contempt proceedings must be conducted on the law side of the court, notwithstanding their differences in character and purpose. Under practically all of the earlier decisions here referred to, lies the fallacious assumption of a right of review for errors in the sentence or order, in all cases of contempt. From the lack of provision for review otherwise than by writ of error, the .court inferred legislative intent to make all contempts criminal, to the end that they may be so reviewed. This process of interpretation completely overlooked plainly expressed legislative purpose not to allow review at all, for mere error, in certain .classes of cases, namely, non-performance of, or disobedience to, a judgment, decree or order. Barnes’ Code, 1918, eh. 160, sec. 4. But for the statute, there would be no right of appeal in any contempt case. There was none at common law. 6 R. C. L. p. 538; *Wells*v. *Comm.,*21 Gratt. 500. In these cases, the statute does not give it: Plainly, therefore, it does not exist. It exists in.other cases, because the statute gives it. This oversight and erronous assumption induced the adoption of a highly confused, illogical and unnecessarily cumbersome procedure. As the construction has no foundation in law, fact or reason, it must be rejected and, in consequence of its rejection, the practice formerly existing and recognizing,the dif-*770férence between civil and criminal contempts is reinstated. Under it, a court of equity could, by an order entered in its own records, under the style of the pending cause, commit a recalcitrant party, to coerce him into the performance of a duty required of him by its decree, in favor 6f the opposite party. *Purcell*v. *Purcell,*4 H. & M. 507. Such an order is almost devoid of the element of criminality and almost wholly remedial. Without power and authority to make it, a court of equity would be unable in many instances, to effectuate legal right and justice between the parties. To make such a proceeding purely criminal in legal contemplation and limit the jurisdiction to the law courts necessarily strips the courts of equity of power essential to the due and efficient exercise of their jurisdiction. Ah interpretation of a statute occasioning such results and resting upon a mere unnecessary implication, hardly more than a conjecture, is obviously unsound and indefensible. In so far as the decisions herein referred to deny to courts of equity, jurisdiction over purely civil contempts, they are disapproved and overruled, for the reasons here stated. And it follows from this conclusion, that the decree complained of is neither void nor erroneous on account of the cognizance of the proceeding by the chancery court, its prosecution therein and the entry of the decree in its records, under the style of the divorce suit. It may be added, that this procedure was impliedly recognized as valid in two cases recently decided by this court. *Petrie*v. *Buffington, Sheriff,*79 W. Va. 113, 90 S. E. 557 and *Ex parte Beavers,*80 W. Va. 34, 91 S. E. 1076.

The suggestion in argument that the imprisonment involved In the court’s process of enforcement of obedience to its decree necessarily makes the proceeding criminal and confers right of trial by jury, wherefore- it is one for the cognizance -of a court of law only, 'is altogether untenable. Instancing the case of a refusal to pay alimony and imprisonment to -coerce such payment, the Supreme Court of the United States, in *Gompers*v. *Buck Stove and Range Co.,*221 U. S. 418, 34, L. R. A. N. S. 874, speaking through Mr. Justice Lamar, said: ‘‘Imprisonment in such cases is not inflicted ás a punishment, but is intended to be remedial by coercing the defen*771dant to do what he has refused to do. The decree in such cases is that the defendant stand committed unless and until he performs the affirmative act required by the court’s order.”'

It is unnecessary and would be improper here, to attempt to indicate the class of cases in which the procedure should be on the law side of the court, or to say whether procedure in the wrong forum would be fatal to the judgment of contempt or committal for a civil contempt. Such a departure might be a mere error as to which there is no right to relief. *McGrew*v. *Maxwell,*decided at this term.

For the reasons stated, the writ of error will be dismissed as having been improvidently awarded.

*Writ of error dismissed.*