Harrod v. Alexander

298 N.W. 676, 68 S.D. 78, 1941 S.D. LEXIS 31

• Court: South Dakota Supreme Court
• Decided: June 12, 1941
• Docket: File No. 8403.
• Status: Published

Opinion

PER CURIAM.

In a novel proceeding wherein the jurisdiction of the court to act in any manner is seriously questioned, the court entered a “decision and order”, as follows: “Ordered, Adjudged and Decreed: That you the said George R. Alexander, be and you are hereby required to forthwith pay to the plaintiff the said sum of Six Hundred Fifty-four & 52/100 dollars ($654.52) together with interest at six per cent (6%) per annum from date hereof, and you are hereby directed to pay the same to the plaintiff, or his attorneys Atwater & Helm, under penalties subscribed for contempt of Court * * *.”

We pass the question of whether the aboye order violates Section 15 of Article 6 of our Constitution, which pro vides: “No person shall be imprisoned for debt arising out of or founded upon a contract.”

There was no finding by the trial court that the defendant had money with which to comply with the court’s order. Under the rule announced in Aberdeen Clothing Company v. Just, 32 S. D. 560, 143 N. W. 900, this order of the trial court to pay money under penalty of being held in contempt for failure to pay, without a finding that the defendant had money with which to pay, was unauthorized.

The order appealed from is reversed.

ROBERTS, WARREN, RUDOLPH, and 'SMITH, JJ., concur. POLLEY, P.J., not sitting.