Ex parte Perkins , 18 Cal. 60 ( 1861 )

Baldwin, J. delivered the opinion of the Court

Cope, J. concurring.

The main question in this case has relation to the power of the District Court to order the applicant, plaintiff in a certain suit for a divorce below; to pay a sum of money for expenses incurred by the defendant below, the wife, in an action for divorce.

It is unnecessary to consider the facts in regard to the propriety of this charge; for, as the Court is one of general jurisdiction, it is not admissible for the defendant in a proceeding of this sort to question the mere regularity of its proceedings. We do not sit as an appellate Court upon matters of this sort, but as a Court of original jurisdiction, invested with a special jurisdiction to discharge the petitioner when no legal cause of detention exists against him. In the regular course of judicial proceedings before a Court of general jurisdiction, the petitioner, having notice of the proceedings, has been ordered by the judgment of the Court to pay a certain sum of money; and in default of obedience to the order, has been committed for contempt. The only question, therefore, which he can make, as affecting the legality of his commitment, involves the 'power of the Court to make the order. And upon this question we have no doubt. The main argument of his counsel is, that this sum adjudged to be paid by him is a debt within the meaning of the constitutional provision; and that he cannot be imprisoned for the refusal to pay this debt, except by proof of fraud, since this would be a violation of the provision of the Constitution which secures the citizen against imprisonment for- debt, except for fraud. But it is well answered that this is not a debt within the meaning of this article. The husband is bound to support the wife, yet this duty is an imperfect obligation which is not technically a debt. He does not owe her any specific amount of money, but he owes a duty to her which may be enforced by the order of a Court, compelling him to pay her money. So alimony, temporary or permanent, may be decreed by the Court, and this may be done, not in one gross sum or at one time only, but in different sums and at different times, at the discretion of the Court. Nor does this power exhaust itself by a mere provision for the actual necessary support of the wife during the litigation. But it is equally within the power of the Court to decree the- payment of the legal expenses of the suit. Legal expenses may well be included in this provision, and this includes the fees to attorneys. This is not a debt, as has been decided by the Supreme Court of Connecticut in Lyon v. Lyon, 21 Conn. 185.

Prayer of the petitioner refused, and he remanded.

Subsequently, on the twentieth of April, 1861, petitioner applied to the Supreme Court for a writ of certiorari to the Third District Court to send up the record and proceedings in the cause, and for an order staying all proceedings upon the judgment for contempt. The petition set forth the facts as hereinbefore related, and averred, further, that, as to the order of the Court below requiring petitioner to pay the four hundred dollars counsel fees, he has lost his right to appeal; and that as to the judgment for contempt, no appeal lies; that the Court below has adjourned for the term,.and therefore petitioner cannot move to vacate said order and judgment, and hence he is without a plain, speedy and adequate remedy, unless this Court will review' the proceedings of said Third District Court.

Upon this petition the Supreme Court ordered that defendant, Elizabeth Perkins, show cause why the writ should not issue.

By stipulation this application was heard upon the record in the preceding application for a writ of habeas corpus, defendant also filing an affidavit not necessary to be noticed.

Shields Shearer, for the Writ.

I. No appeal lies from the order requiring, petitioner to pay counsel fees. (Wood’s Dig. 210, art.1070, sec, 336; Id. 920, art. 113.) It was an order pendente lite, and therefore interlocutory. (Loring v. Illsley, 1 Cal. 439 ; People v. Thurston, 5 Id. 517; DeBarry v. Lambert, 10 Id. 503; Baker v. Baker, Id. 527.)

II. This order was irregular. The Court can decree support pendente lite, and in this support embrace an allowance for counsel fees—but cannot decree payment to the wife of a specified amount for counsel fees, or render distinct decrees for specific sums to different parties. But if an allowance were made for her counsel fees, the wife would become a trustee, the counsel the beneficiary.

The Court has already decided that an allowance of alimony is not a debt of the husband within the meaning of the Constitution. It is a portion of the husband’s estate, allowed for the wife’s support. Now, alimony is of two kinds: first, an ascertained allowance of money to come out of the estate; second, a portion of the estate or property to be set apart to the wife for her separate use— the first generally pending the litigation, the last after final decree. Both are" in this alike, that they depend upon the amount and value of the husband’s property. Alimony should be made primarily out of the husband’s property. (Brown v. Ackroyd, 34 Eng. L. & E. 214-217.) The allowance is a charge against the husband, and must be realized out of his estate, as any other demand against him, by a civil proceeding, and not by a proceeding of a quasi criminal nature. (Baltimore and O. R. R. v. Wheeling, 13 Gratt. [Va.] 40.) As it is not a charge against his person, no resort can be had against his person before execution against his property, or sequestration of it, and a return of the process unsatisfied ; and then not until a conviction of fraud, or improper practices in relation to his estate, of which he has the control and management.

In Lyon v. Lyon, (21 Conn. 185) cited by this Court in its decision in Perkins on Habeas Corpus at this term, the application was made for an attachment against the party after final judgment, and in support of the application it was alleged, not only that he had refused payment, but that he had “ concealed and fraudulently disposed of his property to evade payment.” A divorce had been already granted, and alimony decreed, and the allowance was ascertained after the decree, supplementary to it, and was for permanent alimony.

The whole proceeding is coram non judice, and a nullity. Unde the order to show cause, the Court had no more power to convict of contempt than it had to adjudge him guilty of a felony; and the commitment being illegal, this Court will discharge the person. (Ex parte Beatty, 12 Wend. 232.)

Byrne & Freelon, contra, argued that the former decision of this Court on habeas corpus covered tile present application;

Cope, J. delivered the opinion of the Court Court—Baldwin, Baldwin J. concurring.

This is an application for a certiorari. The opinion delivered at the present term, refusing to discharge the applicant upon a writ of habeas corpus, is decisive of the points involved in this application.

Writ.denied, and petition dismissed.