Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1888-04-28
CAN THERE BE IMPRISONMENT FOR
DEBT?

nent. Inc superior court ordered W H. |
son to pay the wife 5000 per month ali
mony and $500 counsel fees, and he, failing
to do so, was committed to Jail on the 25th
Of april, 1887, until the sum should he /
paid. Ever since Wilson has languished |
in prison. In his petition to the Supreme
Court for writ of mandate directed to |
the Superior Court to permit the prisoner |
to be heard, Wilson alleges that he APP
piled last December to the Superior Court
to be allowed to take the oath and secure
the discharge guaranteed by the Cede, but
that his request was denied.
Section ll43 ct seq. of the Code of Civil
Procedure provides that any one confined
on an execution issued on a judgment in a
civil action must be discharged, when he
shows to tae satisfaction of the Court and
takes an oath that he has no estate in ex-
cess of $50, except such as isoexempt from
execution, and that he has not spirited
away any of his property to avoid the
Judgment. If the Judge Of the Court is
not satisfied and refuses to discharge the
prisoner, the latter may apply anew at the
end'of every succeeding ten days.
The Superior Court of Alameda replied
to Che petition of Wilson, denying that he
was refused his rights under these sections
of the Code Also replying that the
prisonerwas not confined in Jail on an ex-
ecution- issued on a judgment rendered in
civil action; that he was so confined br
virtue of a commitment for CONTEMPT of
Court and that he was not, and still is
not, entitled to be examined, or TO be dis
charged from custody, under the proyi-
sions of said sections Of the Code" The
Court also replied that it did hear Wilson,
and all he had to offer, but denied his pc
tition for freedom because, it, the Court,
did not believe, and was not Satisfied" he
was entitled to be discharged On this re-
turn, or reply, by the Superior Judge of
Alameda county, the Supreme Court denies
the petition of Wilson for writ of man
date, saying:
| 1t is probable that the respondent refused to
| discharge the petitioner and to consider the
| merits of the case, upon the ground that hav-
| ing been committed for contempt, he could not
| under any circumstances be discharged under
| the sections of the Code referred to. But as the
| case was submitted on the answer taken as
/ true, and as ii AYERS that respondent did hear
| the application, and denied the discharge he
| cause the petitioner was not in the judgment
| of respondent entitled thereto the writ Of
mandate must, therefore, be dismissed.
Stopping right here, the decision might
be taken as affirming the power of a SUI
perior Court, under finding that a party
is in contempt, to imprison defendant for
debt created by order of the Court in
| divorce ease, so long as the Court is not
satisfied that he has not the property
or income ability to pay it. This would
amount to possible Imprisonment for life
for debt. But as to this, the Supreme
Court is at pains to go further, and notify
the Superior Court of Alameda distinctly
that while the return made is such
that it must deny the prisoners petition,
yet as he has the right to apply to the Su-
perior Court every ten~days, that Court
must take warning that disobedience to an
order to pay alimony is ciul contempt,
and that a commitment for GIRL contempt
"is the same as under an execution"
| The Court concludes:
We think, therefore, that if the petitioner
| Shall make another application under the sec
| tons OF the Codes mentioned, il will be the
duty OF the superior Judge to consider the case
Nm hi fha
| tons to hear evidence touching his property
and effects to discharge the petitioner if he be
| satisfied from the eyiderce of his inability t.
| pay ana to remand him if he be not so salts
fed. To hold that the petitioner though
| utterly pennIless, must suffer a life imprison-
ment for debt because of the particular form in
winch the Imprisonment was imposed would
Code.
This ought to settle the question
whether one can be imprisoned for life for
non-payment of debt of alimony, but if
the satisfaction" of the Court Of the
prisoners inability to pay is to be the
end, and no inquiry into the discre-
ton of the Court is possible, then under
the decision of the Supreme Court de-
PENDANT can be imprisoned for life. This
appears to be the idea of our esteemed
contemporary, the San Francisco Cal, for
it says;
If the Superior Judge of Alameda, acting ON
the bint thrown out by the Supreme Court.
should declare that he is not satisfied" of
wilson inability 10 pay, and should thereupon
remand him to jail TO spend the remainder of
his days there. the people of California will re-
gard that action as not only gross violation of
the intent of the Code but likewise an outrage
on common decency.
The error Of our contemporary is in sup
posing the determination of the Superior
Court on the application of the prisoner
to be final. On the contrary, it is sus-
ceptible of review, and the whole matter
does not rest with the Courts "satisfac-
ton" If the facts ought to satisfy it that
the prisoner should be discharged, and the
Court refuses to make the order then the
Supreme Court would, as it has Just done,
hear the application OF the defendant for
review of the act of the lower Court
and itself order the discharge if there had
been abuse of Judicial discretion. In
short, it is not true that imprisonment for
debt of any sort is possible in California
under any procedure, if the inability of
the defendant to obey the Judgment of the
Court is established, where a deprivation |
of liberty is by the statutes permitted in
the first instance. The Gail says:
II Captain Wilson can be locked ND for nine |
months because he cannot or will not obey the |
orders OF the Alameda Judge, he may be kept |
IN prlson for nine years, or for life.
If one can but piA not obey the orders of
the tribunals OF the land then he ought to |
be locked up, for life if need be. There are
strange ideas afoaf about personal liberty.
All liberty lests upon the basis Of obedi-
ence to the laws, which are but the voiced |
DEGREES society finds necessary for the
preservation of human rights from en-
croaehment by the strong. The duty of
the citizen is to obey the law. He who
refuses to do so, having the ability-re-
fuses to obey the order Of tribunal he
has himself established, and which, if in
error, may be corrected-eught to be
locked up, as is the man who 50 offends by