Atlanta Georgian and news. (Atlanta, Ga.) 1907-1912, February 20, 1907, Image 12
t .
ST A 7 EMENT OF PA YTON & HAY
AS TO CONTEMPT PROCEEDINGS
BROUGHT BY JUDGE SPENCE
To the Editor of Tho Of*>t Klnn:
Referring to hho contempt proceed -
In* ngslrm myself nnd partner, will
■ay that the history of th£ matter In
■II the paper* wan Incorrect. We pub.
Ilshetl h complete history of the cmp In
the Albany dally t*njw*r. a copy of
which we send you for reproduction, u«
U will correct the account previously
published in your pn|*-r We are your
friends and know that you will be Kind
to five our side of the matter. Thank
ing you In advance for your attention
to the matter, we are.
Youm truly.
CLAUDE PAYTON,
A\JL HAY
3. lih"», H* Itie Nipper, through her
counsel. prtM'iitcd to Judge Bpenco at
Morgan. «;■ a petition for temporary
By virtue of ten revolutions of the
earth upon Its axis, I am today out of
|atl. I mention thta, not as n matter of
news, for everybody txi*cte<J it *.»
happen, but wa a matter of fact, be
cause It haa happened. It aeetns to he
pretty generally underatood already
that my recent confinement grew out
-it the caae of Battle Ntp|»er vs. Henry
7. Nipper, which la a ault by the w ife
iffttnst the husband for temporary ali
mony. writ of ne exeat, and am h other
trouble as ahe and her father can gl\
the pom- boy who unfortunately mi.,
rled her. The ault la |-*ndlrg in lh«
*u|>crlor coui t "f Turner county.
While In Jail I read The Herald, read
In It why I uus In Jnll. and read In It
some ren>on«* which were not reasons
In fact nnd which I now and hero de
sire h» correct «>f course I understood |
how The Herald got the news and how
other paper;# got It. and therefore at-]
tnch blame to nobody, but having
enough ..f attachment^ proceedings. I
desln* only t.» correct s one errors re
garding my most recent attachment
Instead of offering some far-fetched
opinions I shall state the controlling
facts and leave you and y«»m readers to
draw- your own conclusion from your
own unbiased Judgment
The Herald (like various otlu-r pa-
. |H*rs» him stated that Judgment fot all-
J monv hail been obtained, that Nip-
pet had refused to pav It. and had
thereupon been attached for contempt
and placed In Jail from which he was
taken by a habeas corpus ftrnceeding,
land that for the heaben* cm pus pro-
c«edlng his counsel were attached for
contempt and placed In Jail As a mat
ter of fact n«* Judgment for alimony has
yet been hnd. nor has there yet been
any (rial of her claim to that preven
tive of matrimonial troubles The hear
ing for thin matter l» st for several
weeks ahead yet.
The fuels are these: on December
ne sole ground offered
Ini tl»* tie ■ xeut was that he had tnlK-
ed about leaving this state, her |»etl-
tlon Itself showing that he wns with
out prop* t ty. Judge Hpence ftien and
lhen* without any bearing from or
notice to || j Nipper, ordered, among
other things, that the sheriff of Tur
ner county "arrest and detain the de
fendant. Henry J Nipper, In custody.
snJd defendant only to be relieved upon
his etneting lnt<* a god nnd sufficient
l»*»ml with good and sufficient secur
ity in the sum of five hundred dollars
tSwdtti, slick bond P* be made |uiyubl<
to the plaintiff. Kettle Nipper, and
Jud rment to be entered thereon as in
cases of api«*n) *’ 1 quote from the
order Itself. Such a bond, of courvc.
would have made those who signed It
liable for whatever judgment for ali
mony the court might thereaflei ren
der against Nipper, and this without
regard to whether he remained lit the
state and appeared In person at court
or not nnd without regard to wheth
er Nipper wits worth or, was able to
pay -*ne red cent or n«»t Though a
minor and whh« ut property, he was
required bv that ord* r to give a money
bond In the sum of luOrt or go to ull.
Why? Because bis wife hail said that
he had said that he contemplated seek
ing n more congenial climate.
At the same time. :he hearing «f
lh»- case was s«-t for December 11.
lOofi. at Sylvester Oa.: but at some
time dutlng the day of Decemtxu 1.1.
Judge Sjs*tw-v. without the knowledge
or consent of Nlp|**r or Ins counsel.
pt«sed an order continuing the hear
ing for December 14 to some time m
January, HM7. Having hennl a rum- r
of this continuance, Mr. Payton, of
counsel for Nipper, saw and talked
v nh Judge Hpence on the night of De
cember 1J. at Sylvester. and urged him
t * grant a sjieedy hearing, which he
fall d to d .. Mr. Payton, then called
his attention to the terms »»f the bond
Inmost d by his order and read from
thd books the law showing thm nti
ap!*carancc bond la all that can legal-
|\ he required «>f the defendant to In-
»suri‘ Ills uppearnnee. and asked that no
'tuner bond bo required: wheteui*on
8p*nce remarked that h#
i not r.imlllnr with the Jaw of ne exeat
pr«*eee«’lngs ns thli was about his first
case of it nnd that the young lawyer
who mid presented the petition to him
1 hud did ut the lime that he did i».*t
kn»*w much about It. but yet ho fail
ed to change the terms of the bond
required. Mr. Payton then reminded
him that Nipper was a young white
man about 2»» yearn o! age. and. though
without property, belonged to a high
ly rwpcciHd family of Turner county,
but. being without property, be could
not give the tu«>m»y bond required an«L
would have to lie In Jail unlesa he was
allowed to give, an appearance bond.
\VI»f ivup« n Judge Spence remarked. In
substance. i*s follows. •'Well, It won't
hurt him to stay In Jail till Jnnuan
On the next day. December 14. Sheriff
Paeon, of Turner county, having Nip
per in custody and not knowing of the
cent I nuam** of the hearing, brought
Nl*»per to Sylvester. according to the
terms of Judge Spence's order. L*pon
learning the facts, he placed Nipper In
the county Jull at Sylvester, ns wax
his duly under the order of the court.
Just how long Nipper was to re in i In
there none of us knew with any degree
of certainty, hut Nipper knew, nnd we
all knew, that the Christmas holidays
were coming on apace and would come
nnd go before January began.
Nipper was sore distressed. He Is
•till a young man, and for him Christ
mas hnn Its charms. Consequently. Mr.
Payton got busy and studied law very
diligently on December 14. 190»>. Hut
he hit upon no satisfactory legal way
of relieving Nipper's distress, except a
writ of hnbens corpus. And, since the
llheity-lovlng batons Ursi wrenched
thin right from the tyrant King John
and wrote U uuge In their own Magna
charts. It has brought no surer happi
ness to any prison door than It brought
n December 14 nnd 13. !$(»«. I think
I shall some time tell him of the origin
•»f this writ, for It will make him re
vere the barons of old.
Hut the constitution of the I’nlted
States guarantees to every citlxcn of
this republic the right to this writ, for
our more Immediate forefathers loved
their liberty a little. It provides:
"The privilege of the writ of habeas
corpus shall not be suspended, unless
w hen. In cases of rebellion or Invasion,
the public safety may require It.'*
And our state constitution provides*
"The writ of habeas corpus shall not
he suspended." And our statutes de
clare the some thing r.nd provide the
mode of procedure, and made It an of
fense. punishable by n 92.5'h) fine. for
» Judge having the authority to issue
the writ to refuse to do so Illegally.
Mr. Payton knew this law. and turn-
in* to section 1210 of the penal code he
read that "Any |>erson restrained r.f his
liberty, under any pretext whatever,
• • • may sue out a writ of habeas
corpus, to Inquire Into the legality of
such restraint." Then section 1212 of
the code provides three Judges to any
one of whom tho petition for the writ
may be presented, and the code Itself
puts them In this order: <1» a city
court Judge; (2) n superior court Judge,
or (3) an ordinary. And the act cre
ating the city court of Sylvester pro
vides: "The Judge of snhl city court
shall have power to Issue writs of
hnbi'us corpus, to hear and dispose of
the same, and In the lame way nnd
with the same power »s the jiubce of
the superior court." This Iniv was fol-
lowed, nnd a copy of the pretext, under
which Nipper wns restrained of his lib
erty. was exhibited; the sheriff was
properly served nnd even Bettle Nip-
Tier's counsel was notified of the pro
ceeding; the case was duly heurd nnd
resulted In favor of Nipper. All that
he had asked was to be set at liberty
upon giving an appearance bond in
stead of a money bond, and tills the
habeas corpus court dVdered to be
done, because no other kind could le
gally he required of him under the
law nnd the facts. This was Decern*
ber 15. *
• in January 8. 1907. Judge Spence, pt
Ashburo. of his own motion, nt least
without «n>* request from-Nlpper or his
counsel to do oo at that time, modified
his original order by providing for nn
appearance bond Instead of a mnnev
bond, though for some reason unknown
to me ho made the sum $1.000, Instead
of fsnq. ns heretofore. Hut the $1,000
np*,H»aranee lxmd was promptly given.
f *r Ntppc r has friends and they have
frith In his Intcgilty.
Then, o i January 17. 19u7, th- plain-
tiff. Hettie Nipper. Hied her petition for
attachment against poor Henry nnd nil
his lawyers. Hhe said they had used
bad Inngonge In their hnh-as corpus
petition, and also had present"! • •
tltlon -to a city court Judge, w*'
they could have presented I: ,l ,
petlor court. Judge, and that •
done this to Avoid Judge-b|**n**• .
done this to avoid Judge S»»
der. These were ihe two
for tho first, let Judge Hp. n • ■
speak. I quote his exa« t 1 " IU
used In his oral Judgment at "’•*
"Now. as to the language u- > m
gard to this court, I presume •
• u matter of taste than imytiinn.
hut certainly If counsel »'•»;' '.
respect for this court they '■‘" I ,
had. It was unnecessary f**
the language In the |»*-tlt«*t*
they characterise as obvhni*.' • . •
and palpably Illegal. I d*»u
and palpably Illegal. .
there wns any'contempt °]
meant by the use of that l*'»“** •'
any language In that petit' " "
fore, I don't base my Jdof ,ni * .. >
language used In that „
■~r was discharged on
Hut two of his lawyers -m
payton and myself, were n*
guilty of contempt, on «"•'
the habeas corpus pctitD"
sued out "before nn Inn •• ' (
as he termed It. to avoid
the superior court.
Each lawyer convicted «/-
days or seventy-five and •
refused to pay one rent until
I. Ik.. I L. MCI I II! ''
have the question t»assr«l up
supreme court.
Thev wished to take th** *
supreme court for review -«■
lion, and asked Judge Hp* » '«
persetleas. This he den«e»i
reason. I don’t know, hj* *
The result was to make h'~
final, precisely ns if n * hlg» •
Uted, for ordinarily It tak«
(Continufd on P»«* N,- ' c 1
9 0 ebek
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