Appellee filed her bill in the chancery court for divorce, alimony, and custody of children. The sworn bill alleged that the wife owned no property of her own and that the husband had none except some live stock of no considerable value, and that the husband had declared his purpose to sell this, pocket the proceeds and forthwith depart from the state. A writ of ne exeat was prayed, and the writ was ordered by the chancellor. The ne exeat bond was given by the defendant with appellants as sureties, the conditions of the bond being in accord with the order and reciting as follows: "The condition of this bond is that the said defendant Bankston Johnson, will *Page 567 appear before the Chancery Court of DeSoto County, Mississippi, at its regular September term 1939, and from term to term during the pendency of said cause, and shall remain within the jurisdiction of said Court, and make himself amenable to all orders and process of said Court during the pendency of said suit," etc.
At the next September, 1939, term a decree of divorce was granted to the wife with custody of the children; and it was decreed that the defendant husband pay to the wife for the support and maintenance of the children the sum of $12.50 per month, beginning October 15, 1939, and continuing until the further order of the Court. Nothing was said in the decree about the ne exeat bond.
The defendant failed to make payment, as required by the decree, and on November 10, 1939, the complainant filed her petition praying that the defendant be compelled by process in contempt. Citation was ordered on this petition, and the defendant appeared and answered at the time and place designated in the citation, when and where a hearing was had, at the conclusion of which the chancellor made an order adjudging the defendant in contempt but gave therein a period of thirty days thereafter within which the defendant might purge himself by paying the alimony installments due up to and within that period. The defendant continued in default, and about thirty days after the expiration of the period last aforesaid, complainant filed her second petition reciting the default aforesaid and praying that the contempt order be enforced. On this petition a further citation was order issued to the defendant returnable at a later day, but when the sheriff undertook to serve the process on the defendant he could not be found; and it is admitted that the defendant had gone to another state, where he remained for about four weeks.
Thereafter complainant filed her third petition, reciting the facts as above outlined, and prayed a summons returnable to the regular March 1940 term of the court against the defendant and also against the sureties on *Page 568 his ne exeat bond. This summons was served, and at the term the sureties appeared, surrendered the defendant, and were relieved of their bond, save that because of the aforesaid breach thereof a decree was entered upon the bond and against the sureties, not in the full sum of the bond but for $74.20, the amount of the arrearage up to the date of that decree; and from this the sureties appeal.
The writ of ne exeat and its appropriate enforcement were well established features of the processes in chancery when that court was instituted in this state, and none of its effectiveness has ever been attempted to be modified by statute in this jurisdiction.
The office and object of the writ is to detain the person of the defendant within the state in order that he may remain amenable to the processes of the court during the pendency of the cause and may be compelled personally to perform the orders and decrees of the court, either interlocutory or final, where a personal performance thereof by him is essential to the effectual preservation and enforcement of the rights of the complainant in the cause. It is issuable, but only, in a case where the right of the complainant against the defendant is coupled with a positive personal duty on the part of the defendant, and which duty no other person can be compelled effectually to perform.
The above statement of its offices discloses its applicability and essential usefulness in alimony cases where neither the husband nor the wife has any property and the alimony must be paid by the husband out of his earnings from employment, and when it is definitely averred and shown that the husband is about to depart beyond the jurisdiction of the state to avoid compliance with his positive personal duty. And its availability in such cases has been put beyond the reach of further question by the rulings of this Court in Edmonson v. Ramsey, 122 Miss. 450, 465, 84 So. 455, 10 A.L.R. 380; Rhinehart v. Rhinehart, *Page 569 126 Miss. 488, 89 So. 152, and Muckelrath v. Chezem, 184 Miss. 511,186 So. 621.
And all the authorities upon the direct question are to the effect that no notice of the application or of the purpose to serve the writ is necessary, for the obvious reason that such a notice would enable the defendant to depart before the writ could be served, and thereby defeat the very object of the writ. And it can no more be said that in this there is an infringement upon due process than to say that a sheriff must first give advance notice to a defendant in an indictment that he expects to arrest him at a certain time, or to the respondent under a search warrant that the search will be made at a stated time and place.
There is no hard and fast form of the writ, or of the bond to be given thereunder. The bond may be so ordered and so worded as to secure the real objects and offices of the writ as hereinabove stated. The quoted bond required and given in the case at hand was such a bond and its terms were authorized and valid. And, as expressly held in the Muckelrath case, such a bond is more than a mere bail bond. It is not discharged when the principal appears and the final decree is entered. As said in that case quoting from the Edmonson case [122 Miss. 450, 84 So. 459, 10 A.L.R. 380]: "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."
The language of our Court in the cited cases is, therefore, in accord with the rule as stated in the text books on the subject that such a writ and the bond thereunder is not a mere provisional or interlocutory remedy expiring at the entry of final decree, but that its object is to secure the presence of the party in order that the decree may be executed or enforced. The leading case on this point is Lewis v. Shainwald, C.C., 48 F. 492, 499. In fact, *Page 570 the writ in actual practice is more often issued after decree and for its enforcement. The few cases in other jurisdictions holding that the writ and bond expire on the rendition of the final decree are based on statutory provisions and are of no persuasiveness in this state.
Immediately upon the service of the writ or at any time thereafter in term time or in vacation, the defendant, if not in contempt, may move to discharge or modify the writ or the bond upon showing: (1) That there was no allegation of sufficient facts, or, if alleged, that such facts did not exist at the time the writ was issued which would justify the issuance; or (2) that the basic facts have ceased to exist, or (3) that other facts have arisen which make the discharge or modification just or proper. The sureties may be released at any time upon proper petition and the surrender of the principal. But until the appropriate step is taken to discharge or modify the writ or bond, the failure so to do must be treated as a confession that the facts existed and still exist which authorized the writ and bond, and both will remain in force until there is performed all that the defendant is required under the decree to do as a positive personal duty and which no other person can be compelled effectually to perform; and, therefore, there is no sound basis for the complaint that there is anything unreasonable or arbitrary in the rule or that there is a deprivation of the personal liberty of the defendant, a term which must be understood as liberty under the law, not a liberty which demands the right to disregard and go free of the character of personal obligation with which we are here dealing.
The argument is made that there was no power to proceed in vacation in the enforcement of the alimony decree — that this could be done only in term time. This defendant was ordered in the decree to pay the alimony in monthly installments. He contemptuously failed to do so, and in vacation there was the stated proceeding to punish for contempt. The power to do so in vacation *Page 571 is expressly conferred by Section 367, Code 1930, and this power is not confined to injunction cases, as contended, but expressly includes "any other order, decree, or process of the court."
The facts of the present case are that in the progress of the effort to enforce the decree by way of process in contempt, the defendant had admittedly gone beyond the limits of the state, so that citation could not be served upon him, he did not remain amenable to the processes of the court, with the result that his bond was thereupon breached. The sureties were thence properly cited to show cause why they should not stand in judgment for the penalty of the bond. They showed no valid cause for avoidance, and they are not in a position to complain that the court adjudged against them a less sum than the penalty of the bond.
Affirmed.