Ex parte TOWNSEND

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Ex parte TOWNSEND
1936 OK 452
59 P.2d 279
177 Okla. 286
Case Number: 27153
Decided: 06/23/1936
Supreme Court of Oklahoma

Ex parte TOWNSEND

Syllabus

¶0 DIVORCE - CONTEMPT - Habeas Corpus - Commitment Proper for Failure to Pay Attorney's Fee and Installments of Alimony Due at Time of Trial.
Where petitioner is found guilty, by a jury, of contempt in the district court for failure to pay past due alimony and is committed to jail until such past due alimony is paid, and he appeals to the Supreme Court, and the judgment of the district court is affirmed, when the Supreme Court issues its mandate, it is the duty of the district court to commit the defendant until said amount due at the time of his trial is paid, but the district court has no jurisdiction or authority to commit him for failure to pay subsequent installments upon which the petitioner has not been convicted. However, petitioner is not entitled to a writ of habeas corpus under such commitment until he has paid or tendered the amount found to be due at the time of his trial.

Petition by Guy Townsend for writ of habeas corpus. Writ denied.

James M. Hays, Jr., for petitioner.
Wellington L. Merwine for respondent.

PHELPS, J.

¶1 In an action for divorce and alimony prosecuted by Ada Townsend against Guy Townsend, the district court of Okmulgee county ordered and directed that Guy Townsend pay, as alimony, to Ada Townsend the sum of $500, to be paid in monthly installments, also $50 attorney's fee.

¶2 The sum of $250 in monthly installments having accumulated and the defendant not having paid either the installments or attorney's fee, he was cited for contempt of court for failing to pay the amount due. Upon trial by a jury he was found guilty and was ordered committed to jail until time as he made payment of said $250, the installments due, and the $50 attorney's fee.

¶3 From that conviction he made appropriate bond and appealed to this court, where the judgment of the district court was affirmed. Townsend v. Townsend, 174 Okla. 185, 50 P.2d 147. While the appeal was pending here, the balance of the installments, amounting to $250, became due, but was not paid. This court issued its mandate to the district court of Okmulgee county. Said mandate was spread of record, and the district court issued a commitment directing that Guy Townsend be committed to jail until he paid the full $500 alimony and $50 attorney's fee.

¶4 He files here his original petition praying for a writ of habeas corpus, claiming that the commitment under which he is held is void for the reason that he was committed to jail until he pays $550, whereas the original cliarge of contempt upon which he was found guilty was for his failure to pay $250 and $50 attorney's fee.

¶5 In our judgment there is merit in petitioner's contention, but there is nothing in the record to indicate that he has ever attempted to purge himself of the contempt charge by paying the $250 alimony and $50 attorney's fee, which furnished the basis of the contempt charges against him. The district court had no jurisdiction or authority to include in the commitment the item of $250 which was not considered in the contempt proceedings, until such time as complaint was made and hearing had relative to that item. However, it is quite clear that petitioner would not be entitled to release until he paid or tendered the amount about which there is now no question.

¶6 The writ is therefore denied.