In re Fullen

¶1OPINION OP THE COURT.

¶2The first point argued in support of the petition is that: The conviction for contempt for failure to produce the child, Bosemary, was void.

¶3The affidavit upon which the rule to show cause is based was made by L. O. Fullen, and alleged that the defendant in the divorce proceedings, Dorothy B. Fullen, was trifling with the court and had “not made any effort, in. good faith, to have the said Rosemary Virginia Fullen brought into the jurisdiction of this court.” Upon this affidavit and motion based thereon, the rule to show cause issued and the answer thereto set up, that she had done all in her power that she could and that the persons having custody of the child, in California, refused to give her up. This answer was supported by numerous letters and telegrams and is uncontradicted so far as the record discloses. It is contended that the motion or affidavit did not set up a valid ground upon which contempt could be predicated, for the reason that the child Eosemary had not been within the jurisdiction of the court during the pendency of the action. In other words, did the court have authority in law to make the order requiring that the child Eosemary be brought within the jurisdiction of the court, or was such order void.

¶41

¶51 It is a settled proposition of law that failure to obey a void order of the court constitutes no contempt.

¶6Ex parte Widber, 27 Pac. 733. Ex parte Fisk. 113 U. S. 713.

¶7Whether any court has the power to command the performance of an act, requiring the concurrence of the will of a third person, over whom the court has no jurisdiction, or perhaps requiring an action of some other tribunal, before the act can be accomplished would seem to be a matter of grave doubt. But we do not decide this question because the second objection urged is clearly s\ifficient to decide this case.

¶8.2 •The second objection being that:' The order committing the defendant for contempt for the alleged spiriting-away of the child, William Bowman Fullen, is void for lack of jurisdiction and for lack of legal proceedings. It is argued that the alleged contempt last referred to was-based upon proceedings had without notice to the accused. Then she was brought into court upon the rule to show cause why she should not be adjudged guilty of contempt for failure to bring the child, Eosemary, within the juriscliction of the District Court, and was adjudged guilt)1, •among other things, of spiriting the child, William, away. The facts of the case clearly support this argument. It is equally clear that this contempt would be a constructive contempt, being predicated upon no act ■occurring within the presence of the court.-

¶9This question has been almost entirely settled by statutory provisions in most of the states. The statutes, referred to, generally require that a proceeding to punish for constructive contempt must be commenced by sworn information. As is stated in Wyatt v. People, 28 Pac. 961, at 964:

“But the practice generally recognized throughout the United States, and according to Blackstone, frequently followed in England, is for some proper official or interested party to set forth by affidavit the material facts re lied upon.”

¶10It was also said in the case last mentioned that:

“The overwhelming weight of authority in this country sustains the proposition that the affidavit upon which the proceeding for a constructive contempt is based must state facts, which, if established, would constitute the offense; and that if the allegations of the affidavit are not sufficient in this respect, the court is without the jurisdiction to proceed.”

¶11Referring to the statutory provisions now governing this question in most states, it is also said in Wyatt v. People, supra:

“But the statute mentioned, and others of like tenor, are simply declaratory in this particular of what may fairly be termed the modern common law practice; and the rule concerning the materialty of the affidavit should prevail to the same extent, in the absence of statute.” We fully agree with the principles here enunciated. It does not appear that the affidavit in the case at bar charged anything with respect to William Bowman Fullen, or that the accused was in any way advised of the charges referred to. We are, therefore, unable to hold that the order of commitment, based upon the alleged spiriting ;away of the child, William Bowman Fullen, was valid, but on the contrary must hold that the order was without jurisdiction and, therefore, void.

¶12By reason of our conclusion in the foregoing matters^ we do not consider it necessary to give consideration to the remaining points on behalf of the petitioner.-

¶13We are of the opinion that the order of commitment by the District Court of Chavez County must be set aside and Dorothy B. Fullen discharged from further custody thereunder.

¶14And it is so ordered.