Clements v. Tillman , 79 Ga. 451 ( 1888 )

Kibbee, Judge,

(after stating the above facts.,

Originally, in the absence of statutes providing otherwise, decrees of courts of equity, of whatever kind or nature, operated strictly and exclusively in personam. The only remedy for their enforcement was by what is termed process of contempt, under which the party failing to obey them was arrested and imprisoned until he yielded obedience, or purged the contempt by showing that disobedience was not wilful, but the result of inability not produced by his own fault or contumacy. The writ of assistance to deliver possession, and even the sequestration to compel the performance of a deeree, are comparatively of recent origin.

Our statutes expressly provide that “ all orders and decrees of the court may be enforced by attachment against the person; decrees for money may be enforced by. execution against the property.” Code, §3099. u A decree in favor of any party for a specific sum of money, or for regular instalments of money, shall be enforced by execution against property as at law.” Code, §4215. “ Every decree or order of a court of equity may be enforced by attachment against the person for contempt, and if a decree be partly for money and partly for the performance of a duty, the former may be enforced by execution.and the latter by attachment or other process.” Code, §4216.

The clear legislative intent is manifest, to enlarge and render more efficacious equitable remedies, while preserving the remedies the courts had previously employed in the absence of statutes providing .others. Under our statutes, when a party is decreed lo perform a duty or to do any act, other than the mere payment of money, which the court has jurisdiction to adjuge he shall do, if he disobeys, the authority of the court is defied; he is guilty of contempt, and the arrest and imprisonment of his person is not imprisonment for debt in any appropriate sense of the term. But if a court of equity should render a simple decree for money, on a simple money verdict, — a decree which it may now enforce by the ordinary common law process against property, the failure to pay the decree would not be a contempt, nor could compulsory process against the person of the party in default be resorted to to enforce payment.

In Coughlin vs. Ehlert, 39 Mo. 285, the court uses the following language: “¥e do not mean to say that a party may nob be put in contempt for disobeying a decree for the performance of acts which are within his power, and which the court may properly order to be done. If it were shown, for instance, that the party had in his possession a certain specific sum of money or other thing, which he refused to deliver up under the order of the court for any purpose, it may very well be that his disobedience would be a contempt for which he might lawfully be imprisoned.” In Carlton vs. Carlton, 44 Ga. 220, Judge McCay, delivering- the opinion, says : “ We do not intend to say that, simply because a debt is adjudged by a decree in chancery instead of by a judgment at law, it may therefore be enforced by imprisonment. The imprisonment must be clearly for the contempt of the process of the court, and be of one who is able and unwilling to obey the sorted to except as a penal process, ingness of the party to obey. The moment it appears that there is inability, it would clearly be the duty of the judge to discharge the party,” etc. The court further held that, “ ordinarily, it would be improper to include in the order the alternative order for imprisonment on failure, since it is not to be presumed, that a contempt will .ensue.” order of the court,

The constitutional provision, “ there shall be no imprisonment for debt,” was not intended to interfere-with the traditional power of chancery courts to punish for contempt all refusals to obey their lawful deerees and orders. This proposition may be conceded to be sound without affecting the case at bar in any respect. “ The power in question was never exercised by chancery courts, except in those cases where a trust jn the property or fund arose between the parties litigant, or some specific interest in it was claimed, or the chattel had some peculiar value and importance, that a recovery of damages at law for its detention or conversion was inadequate. Such interference was in the nature of a bill quia timet, and was asserted only on a proper showing that the fund or property was in danger of loss' or destruction.” 1 Story Eq. Jur. §§708-710. “No jurisdiction to compel the payment of an ordinary money demand unconnected with such peculiar equities, ever existed in chancery courts, nor had they the power to compel such payment by punishing the refusal to pay under the guise of contempt.”

In the case at bar, the decree was right in awarding an .execution against the executor, as set forth in said decree, but the facts did not authorize an alternative order imprisoning the defendant on failure to pay.

Judgment reversed.