The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1895-10-22

Judge Merritt yesterday morning de-
Iivered his opinion in the contempt
proceedings instituted against Lewis
P Kelsey for having failed to pay al
imony as ordered by the court, and
which was heard and taken under adj
visement on Saturday.
After stating the case and the evil
dence as to the means Of the defend
ant, the opinion says that the court
will not imprison man for failing to
comply with an order to pay money
when such failure to pay is really the
result of his inability to comply. But
such inability must be actual and not
the consequence of his own careless or
willful lack of disposition to procure
the money. Where a man has no prop
erty or credit which gives him suffi-
Gent standing to obtain money in the
expectation of paying it back, the
court would not expect him to appeal
for charity under the guise of a loan,
which there was no reasonable prob
ability of his ever paying or being able
to pay, but the court is not prepared
to admit that mans credit is not to
be relied upon for the benefit of his
wife and children under the protection
of the court when the same may be
properly regarded as property avail
able to him and his uses.
The opinion then refers to the fact
that the defendants firm has been for
years one of the leading real estate
concerns in the city; that the defend
ants answer admits that he is now
earning $4,000 a year; that ne owns per-
sOnal property worth $1,000 and equi-
ties in mortSaged property worth 49,,
900. Upon the hearing of the motion
for alimony no question was made as
to defendants ability to pay. the whole
contest being made upon the fact of
marriage which involved the right to
any alimony or suit money. Since the
order for alimony the. defendant exc
cuted a deed to his mother Of all his
interest in some nineteen city lots, and
in forty acres of land. which deed was
put on record; defendant also sold his
gold watch for $50 and had a diamond
horse shoe pin; he paid his attorneys
500 fees and ordered a transcript of
the testimony made at a cost of 500.
Could Comply with the Order.
Then the opinion says: Here is a
man who is in business, he lives in
valuable house and with his partner
maintains an office and clerk. AS an
adjunct to the business a horse and
buggy is used. He maintains mis- niece
and his mother, who has property of
her own, from which a small income
is derived Something was said about
his little daughter, although 1 do not
remember that defendant said he sup-
ported her. The living expenses of the
family are about $40 to $50 per month,
according to defendant He has been
able to raise funds to carry on his side
Of this suit, and has secured four
wealthy and prominent business men
as his sureties on bond to secure pay
ment of $1,000. I am satisfied that his
failure to pay this alimony was not
the result of an actual inability to pay
and that the defendant would have
no difficulty jpn providing for funds to
comply with the order of the court.
The failure to present such defense
at the hearing upon the application for
suit money and alimony, coupled with
the clear admissions in the answer Of
his facilities are net without signif
canoe here. The conveyance to his
mother in the light of his own expIana-
ton, together with the alleged sale of
his watch, only tend to confirm me in
the belief that his present condition of
good faith is not true in fact.
Guilty of Contempt.
AZ find, therefore, that it is not true
that defendant is unable to comply
with the order of the court. and that
he has contumacously neglected and
refused to pay the sums of $40 respect
lively directed to be paid on the list
and 10th days of October, 1895, as ALI
mony and is consequently guilty of
contempt of this court, and 1 further
find that it is in the power of the de-
PENDANT to make said payments and do
order and adjudge that he be COM
mitted 10 the custody of the United
States marshal to be by him confined
and imprisoned until he shall obey the
order of the court aforesaid, and pay
the said sums of money amounting to
$50. or until discharged by the court.
LET a warrant of commitment be
made out forthwith"
Released on Writ of Habeas Corpus.
Mr.. Kelsey was placed under arrest
and remained in the custody of the
United States marshal until . o'clock
in the evening when he was released on
a writ of habeas corpus gotten out by
his attorneys, Messrs. Dickson, Ellis &
Ellis. and granted by Judge King.
1t is represented in the petition that
Kelsey is unlawfully imprisoned for
the reason that the court did not have
jurisdiction to make the order of COM
mitment because that an appeal to the
supreme court had been perfected be-
fore the entry of the commitments
Kelsey's bond was placed at $1,000
and his sureties were Richard Mackin-
tosh and Benjamin Hampton. The
case will come UP before the supreme
court on November 6.