1. — Contempt — Amendment of Order.
Though the district judge exceeded his authority by imposing a fine in excess of the amount permitted and in directing imprisonment by a verbal order, the invalidity of these proceedings would not entitle the party to discharge on habeas corpus where, before his application, they were remedied by a written judgment not in excess of the court's power. (P. 589).
2. — Contempt — Divorce — Injunction — Bond.
The giving a bond is made a condition precedent to the issuance of an injunction (Rev. Stats. Art. 4654); and this applies to cases of injunction obtained by the wife in divorce proceedings under articles 4638, 4639, Rev. Stats. An injunction issued without bond in such case is void; and so, also, was a commitment of the husband for contempt in violating it; and he was entitled to discharge on habeas corpus. (P. 590).
MR. CHIEF JUSTICE PHILLIPS delivered the opinion of the court.
The relator as the defendant in a divorce proceeding was temporarily enjoined by the Special District Judge of one of the District Courts of Bexar County from molesting his wife and interfering with her control of certain property. For disobeying the injunction he was by the Special District Judge held in contempt, and by verbal order a fine of $500 assessed against him and a sentence of 60 days in jail imposed. No commitment was issued on this verbal order. The sheriff acted, it appears wholly upon the mere oral direction of the Judge.
The injunction writ had issued without the giving of any bond by the plaintiff in the suit. Apparently, no bond was required of the plaintiff.
The relator having applied here for a writ of habeas corpus following his being adjudged in contempt, the Special District Judge, before action here on the application and while the District Court was still in session, amended his order in the contempt proceeding, entering a written judgment as of the date of the original order, adjudging the relator in contempt and reducing the penalty imposed to a fine of $100 and 3 days imprisonment in jail; a certified copy of the judgment as amended being duly delivered to the sheriff as a commitment.
The Special District Judge had no authority to assess against the relator for disobedience of the injunction any such fine or impose any such jail sentence, as was originally ordered. Nor did he have any authority to direct the imprisonment of the relator by his verbal order. Since, however, he amended his judgment or order, reducing the fine and jail sentence to the limits he was authorized under the statute to impose and there was placed in the hands of the sheriff as a commitment a certified copy of the amended order before the writ of habeas corpus was issued by this court, we would not direct the relator's discharge because of the invalidity of these original proceedings.
Under the statute the giving of a bond is made a condition precedent to the issuance of an injunction. This requirement applies to divorce suits brought by the wife, notwithstanding articles 4638 and 4639. Wright v. Wright, 3 Tex. 168. The Judge was therefore without power to grant the injunction without requiring a bond from the plaintiff, and the injunction was accordingly void. Williams v. Huff, Dallam 554; Diehl v. Friester, 37 Ohio St. 473; Lawton v. Richardson, 115 Mich. 12, 72 N.W. 988.
The injunction being void, the contempt orders were equally so.
The relator is discharged.
Relator discharged.