Summary
In Muckelrath v. Chezem, 184 Miss. 511, 186 So. 621, and Johnson v. Johnson, 189 Miss. 561, 198 So. 308, the office and object of the ne exeat writ was stated and explained.
Summary of this case from Johnson v. BarnetteOpinion
No. 33576.
February 20, 1939. Suggestion of Error Overruled March 20, 1939.
1. DIVORCE.
Chancery courts have power to issue equitable writ of ne exeat republica even before award of alimony when proper charge is made to court that defendant is about to leave the state or that he had said that such was his purpose.
2. DIVORCE.
In proceeding for writ of ne exeat republica, defendant in proceeding for divorce and alimony may be required to execute bond with sufficient sureties conditioned not to leave the state or as security for payment of alimony which may be adjudged against him.
3. NE EXEAT.
The object of a writ of "ne exeat" is to detain the person of defendant to compel him to perform decree of the court in those cases where his departure would endanger rights of complainant or prevent effectual enforcement of order of the court.
4. DIVORCE.
In wife's suit for divorce and alimony, "ne exeat bond" conditioned on husband's appearance on hearing of bill of complaint was in effect an appearance bond to abide the decree of the court and not a bond to abide and perform the judgment.
5. DIVORCE.
In wife's suit for divorce and alimony, wherein husband with sureties was required to execute ne exeat bond conditioned on husband's appearance, court properly had principal and sureties called and took forfeiture on bond and adjudicated that husband had fled from the state.
6. EQUITY.
Chancery court is invested with full power to enforce bonds lawfully required and filed in its court, and is not required to await action of some other court in order to enforce its decrees on the bond.
7. DIVORCE.
In wife's suit for divorce and alimony, wherein husband was required to file ne exeat bond, court had duty to treat principal and sureties as having entered appearance for purpose of jurisdiction, so as to become parties for purposes connected with use to which bond was put for purposes of the suit.
8. NE EXEAT.
Where ne exeat bond is given to abide decree of court, court should on breach of bond summarily require parties thereto to pay money in court or within reasonable time appear and show cause, if any, why money should not be so paid.
9. DIVORCE.
On sureties' appeal from portion of divorce and alimony decree awarding money decree in amount of penalty on ne exeat bond against husband and sureties, reviewing court would presume that wife and children were entitled to money from husband for their immediate wants.
10. DIVORCE.
In wife's suit for divorce and alimony, ne exeat bond given by husband to abide decree of court was for benefit of wife, and hence on payment of amount of bond into court after breach thereof, amount would be disbursed to wife in trial court as that court should direct.
APPEAL from the Chancery court of Jasper county; HON. A.B. AMIS, SR., Chancellor.
Creekmore, Creekmore Capers, of Jackson, for appellants.
We wish to call to the attention of the court that the final judgment is given against the sureties on the bond without their having been summoned into court by any manner, and without there being any citation or ruling issued upon them to show cause why the bond should not be forfeited and judgment rendered against them. We also call to the attention of the court that the judgment was rendered against them at a time when there was nothing due on alimony as the first payment was not due until three days later.
The ordinary means of enforcing a bond with a condition after breach of the condition is by a separate suit, as provided by Section 528 of the Code of 1930. We do not believe that the Chancery Court had jurisdiction to render a judgment for a breach of the bond.
Amis, Divorce and Separation in Mississippi, page 370, section 268; Wolfe v. Garcia, 73 So. 593.
We have found no case where a judgment has been given against the sureties in a summary proceedings without some legal notice for them to show cause why the bond should not be forfeited.
It is very clear and plain, as set out by Chancellor Amis in his book, that a complainant may bring suit on the bond to recover any amount due and unpaid. However, Chancellor Amis is very definite in saying that suit may not be for sums not due and that such suit may be brought only after decree has been given for alimony. The defendant may return and submit himself to the jurisdiction of the court. He may begin paying the monthly alimony awarded against him.
We respectfully submit, therefore, that the Chancery Court of Jasper County was without authority to render in a summary proceedings without notice any judgment against the sureties on the ne exeat bond. Even if the Chancery Court had such power it could extend only to amounts or sums of alimony then due and unpaid and could not embrace or cover future sums of alimony to be paid.
O.M. Oates, of Bay Springs, for appellee.
We believe that learned counsel seem to fail to grasp the nature and very purpose of this type of a bond. They seem to get the idea that it is like a criminal bond which is controlled by Section 1248 of Code of 1930 wherein after default a judgment nisi issues and a scire facias on the defaulters is necessary to show cause why the judgment should not be made final, etc. The very nature of this type of a bond is very ably treated by Chancellor Amis who rendered this decree on his book entitled "Divorce and Separation in Mississippi" on page 366 section 263 thereof, near the bottom of this section, page 366, when it says: "But if he do not so remain, the sureties were liable for the payment of such a decree as the complainant might recover, not to exceed the penalty of the bond." It was well said in this same treatise that no statute of this State governs and regulates the matter, but the power of the court to issue the writ, so he says, is recognized in the case: Edmonson v. Ramsey, 122 Miss. 450, 84 So. 455.
Griffith's Chancery Practice, sections 496, 497, 498; 19 R.C.L. 1352, section 18.
In Paragraph 18, page 1352, 19 R.C.L., among other things, says: "And if he does leave the state without permission, an order will be granted directing his sureties to pay the money into court, or, in default thereof, that a suit be brought on the bond."
It seems that counsel takes the position that no judgment or decree could have been rendered on this bond without suit. This type of a bond is civil in its very nature and not criminal. 19 R.C.L. states that when a defendant leaves the jurisdiction, he cannot do so without violating the bond and an order will be granted directing the sureties to pay the money into court. We were awarded a decree for the full amount to be paid as it becomes due which is correct.
We respectfully say that these sureties have had their day in court at the hearing of the bill of complaint when the testimony showed that Chezem had fled the jurisdiction of this court in so far as rendering a forfeiture on the bond and decree that the terms of the bond be met as these installments of alimony became due and payable in accordance with the facts and circumstances shown on trial because the sureties agreed by their signatures to abide the decree of the court and that Chezem would remain in the jurisdiction of the court. He did not, then appellants could not complain against the appellee because of this, when they signed the bond to perform the very conditions set for in the learned chancellor's opinion.
The appellants, Muckelrath and Alexander, were sureties on a ne exeat bond executed by them as surety on a bond for $750, with Louis Chezem as principal. The bond was issued in connection with divorce and alimony proceedings instituted by Mrs. Chezem against her husband, Louis Chezem.
Upon presentation of the bill of complaint and affidavit, Hon. Edgar M. Lane, Circuit Judge of the district in which Jasper County is located, directed the clerk to issue the writ of ne exeat against Chezem, the husband, prohibiting him from leaving the State and directing the sheriff to require a bond of said Chezem in the sum of $750 under the penalty of the law. Pursuant thereto, the writ was issued and filed in the Chancery Court of Jasper County, along with Mrs. Chezem's bill for divorce and alimony.
On the final hearing of the cause, the court granted a divorce to Mrs. Chezem and the custody of their five children. The court further decreed against the husband in favor of the wife permanent alimony in the sum of $10 a week or $40 a month, and directed Chezem to pay to her the same amount per month for the support of the minor children.
Chezem, the defendant in the court below and principal in the ne exeat bond, does not appeal to this court.
The following part of the order is appealed from and complained of in this court: "It further appearing to the court that the defendant, Louis Chezem, was, by order of the court, placed under a bond of Seven Hundred and Fifty and 00/100 Dollars ($750), under a writ of ne exeat with sureties, Poley Muckelrath and P.C. Alexander, to appear before this court on the hearing of this bill of complaint; and that the said defendant, after the execution of this bond, fled from the jurisdiction of this court into the State of Missouri, and failed to answer after having thrice been called by the sheriff to answer the mandates of the bond and his appearance before this court; it is, therefore, ordered, adjudged and decreed by the court that a judgment for Seven Hundred and Fifty and 00/100 Dollars ($750) be and the same is hereby awarded against Louis Chezem, as principal on said bond, and against the sureties on said bond, Poley Muckelrath and P.C. Alexander, and that the sureties on the bond be required to pay the alimony and support to complainant as and when due under this decree to the extent of this bond as required under this order, for which let proper process issue." The bond, after reciting the pendency of the divorce and alimony proceedings, is as follows: "Now therefore, we bind ourselves, our heirs, executors, administrators to stay within the jurisdiction of the Chancery Court of Jasper County, Mississippi, to await the decree of the court in said above styled cause, under the penalty of this bond and to abide the orders of said court, and when so done, then this obligation is to (be) void, otherwise to remain in full force and effect."
The appeal here is predicated upon complaint that the court below entered a final judgment against the sureties on the bond in the chancery court, and it is contended that only a final judgment against the sureties on the bond could be entered in a court of law by a suit on the bond which was payable to the State of Mississippi for the use of Mrs. Elizabeth Chezem.
In support of this proposition, there is cited to us by appellants, Section 268 of Amis' Divorce and Separation in Mississippi; and the case of Wolfe v. Garcia, 72 Fla. 491, 73 So. 593, which seems to support the argument advanced by the appellants. The Florida case is of little assistance, for the reason that there appears to be controlling statutes as to writs of ne exeat in the State of Florida, and in Mississippi there are no statutes on the subject.
The writ ne exeat regno (in this country, ne exeat republica) has been recognized in the Courts of England since the reign of Queen Elizabeth. In the case of Edmonson v. Ramsey, 122 Miss. 450, 465, 84 So. 455, 458, 10 A.L.R. 380, this court declared that the writ was available in proper cases in this State in the following language: "It is also to be borne in mind that our chancery courts have power to issue the equitable writ of ne exeat republica even before an award of alimony, when a proper charge is made to the court that the defendant is about to leave the State or that he has said that such was his purpose. Under this proceeding, he may be required to execute a bond with sufficient sureties conditioned not to leave the State, or as security for the payment of the alimony which may be adjudged against him. 1 R.C.L. 888; Bronk v. State, 43 Fla. 461, 31 So. 248, 99 Am. St. Rep. 119. The object of the writ of ne exeat is to detain the person of the defendant in order to compel him to perform the decree of the court in those cases where his departure would endanger the rights of the complainant or prevent the effectual enforcement of the order of the court."
It will be observed that this court enforced a decree wherein there was a writ of ne exeat in the case of Rhinehart v. Rhinehart, 126 Miss. 488, 89 So. 152, but in that case the chancery court was vested with the power to punish for contempt by Section 1421 of the Code of 1930.
The procedure and the orders have never been under review in this State, but we find that in 1815 the Lord Chancellor, in the case of Utten v. Utten in Merivale's Chancery Reports, Vol. 1, Page 51, entered an order upon breach of the bond by the principal requiring him and the sureties on a ne exeat bond to pay the money into the court. In that case, the sureties, by petition, stated that the principal in the bond had gone abroad under a mistake as to the effect of the bond and prayed that the sureties be discharged. To like effect is the case of Musgrave v. Medez, 1 Merivale's Chancery, Page 5.
In the case at bar, it will be observed that the bond executed herein was in effect an appearance bond to abide the decree of the court, and not a bond to abide and perform the judgment. The court below, as we view it correctly, had the principal and sureties called and took a forfeiture on the bond and adjudicated that the principal, Chezem, had fled from the State to the State of Missouri. Then, he rendered a money decree against the principal and the sureties on his bond for the penalty thereof $750.
We are of opinion that under our system of jurisprudence, the chancery court is invested with full power to enforce bonds lawfully required and filed in its court, and that it is not necessary for it to await the action of some other court in order to enforce its decrees on the bond. The bond in this case is more than a mere bail bond. The bond had been breached and thereupon, in our opinion, it was within the province and duty of the court to treat the principal and sureties who had entered into the obligation on a ne exeat bond as having entered their appearance in the suit for the purpose of jurisdiction, and that they so did in the court of chancery and became parties thereto for the purposes connected with the use to which the bond is put for the purposes of the suit. In a case where the bond is given to abide the decree of the court under ne exeat writ, the proper order would have been, as we glean from the authorities, to summarily require the parties to the bond to pay the money into court, or within some reasonable time to appear and show cause, if any they could, why the money should not be so paid. Any other view would render the presumably helpless party complainant and the court powerless to proceed with proper decrees to be rendered in alimony proceedings. We must presume that the wife and children were entitled to money from the husband, Chezem, for their immediate wants. There can be no question but that under such procedure the parties can be accorded full and complete justice in a chancery court.
The ends and purposes of the writ ne exeat will be accomplished by the procedure we have outlined and no injustice can follow when this procedure is properly administered in the chancery court. We have examined many cases, but we cite especially the opinion of the chancellor in Margaretha Schreiber v. Charles Schreiber, 85 N.J. Eq., page 303, 96 A. 85. This case was appealed to the highest appellate court and it was there affirmed without opinion by the thirteen judges constituting that court.
The decree of divorce and awarding alimony is not disturbed, nor is the forfeiture on the bond by this court, but the cause is reversed and remanded in order that the court may summarily order the parties to the bond to pay the money into court, or in default thereof that they appear at some time to be named by the chancellor to show cause why a money decree should not be entered against them, and if and when the amount thereof is paid into court, the order will be that it be disbursed to the appellee in the court below as that court shall direct. Such bond is clearly for the benefit of the appellee.
Reversed and remanded.