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Ex parte Quan

Supreme Court of Arizona

October 6, 1931

In the Matter of the Application of LOUIE QUAN for a Writ of Habeas Corpus. CHARLES H. WRIGHT, Sheriff of Maricopa County, State of Arizona, Appellant,
v.
LOUIE QUAN, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. Affirmed.

Mr. Terrence A. Carson, for Appellant.

No appearance for Appellee.

OPINION

Page 523

ROSS, J.

On his application for writ of habeas corpus, Louie Quan was discharged from the custody [39 Ariz. 14] of the sheriff of Maricopa county by an order of the superior court of such county, Honorable DUDLEY W. WINDES presiding, and the sheriff has appealed.

The facts, or those material, are as follows: In November, 1918, Louie Quan's wife, Mary, secured an absolute divorce from him, and at the same time was awarded the custody of their two minor children. In the decree the defendant was required to pay to the plaintiff a monthly sum for the support and maintenance of the children. Subsequently, this last order was modified by placing the children in the custody of St. Mary's school for children at Phoenix, Arizona, and directing the defendant to pay such school $40 per month for their support and maintenance. In November, 1929, upon application of the plaintiff and a showing therein that Louie had converted his property into money and sent it to China and had applied for passports for himself and two children, the court issued a writ of ne exeat prohibiting Louie from leaving the jurisdiction of the court unless he make a bond to the plaintiff conditioned to pay her all sums adjudged by the court for the support and maintenance of the minor children. Defendant executed the bond in the sum of $3,000, conditioned as provided above, and appealed from the court's order and decision.

Thereafter plaintiff made application to the superior court for an order requiring defendant to advance to her an attorney's fee and suit money with which to appear in the appellate court and contest the appeal. The court thereupon ordered defendant to pay to plaintiff the sum of $200 as an attorney's fee for that purpose.

On March 22, 1930, the plaintiff made a verified application for an order to commit the defendant for contempt in failing and refusing to pay plaintiff the said $200 for an attorney's fee, and the court thereupon issued a citation to show cause to defendant. [39 Ariz. 15] This citation was not served upon defendant, because the sheriff, after a thorough search, was unable to find him. It appears that at the time defendant was absent from the state, having gone to California on a visit. He later returned to the state.

On September 5, 1930, at a hearing before the Honorable M. T. PHELPS upon an application by plaintiff to have forfeited the ne exeat bond, the defendant being present and represented by counsel, the court, without hearing any evidence whatever, committed him to the county jail until such sum of $200 was paid or he was otherwise legally discharged.

The reason given by the court for ordering defendant discharged from the custody of the sheriff was that "no citation was had as required by statute."

As above stated, the court was considering the question of forfeiture of the so-called ne exeat bond at the time the contempt matter was taken up. The bondsmen had forcibly brought defendant into court for the purpose of surrendering him and securing release of liability on the bond. Defendant did not voluntarily appear. The court in substance said, addressing the defendant: "I made an order that you pay plaintiff $200.00 attorney's fees and you have not paid it. If you don't pay it right now, I'll commit you for contempt." The defendant verbally protesting that he had no means to pay the $200, the court imposed the sentence above stated.

The record fails to disclose that either the defendant or his attorney had ever been served with a ...


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