I concur on the ground that it was not a contempt of court for the defendant to fail to pay more than $65 per month under the facts and circumstances of this case. Since the defendant was fined and given a jail sentence, which was *Page 268 suspended in case the fine was paid within a given time, the object was to punish him for an indignity toward the court and not to coerce payment of the judgment. Had the latter been the object the court would have ordered him to pay all or a part of the judgment, and committed him to jail until he complied with the order. I do not think that under the facts and circumstances of this case he offered any indignity to the court for which he could be so punished.
In Foreman v. Foreman (In re Barclay), 111 Utah 72,176 P.2d 165, which is now pending in this court on a petition for rehearing, we held that in a criminal contempt case this court did not get jurisdiction to determine an appeal on its merits where the notice of appeal was not served on the judge, or any other attorney for the state, but was only served on counsel for the opposing party in the action out of the trial of which the contempt arose. Under the cases relied on in that case this would constitute a criminal contempt, and under the ruling there made this court would have no jurisdiction to hear this appeal, since the notice thereof was only served on the opposing attorney in the divorce action. I still adhere to my dissenting opinion in that case and therefore concur in this case. *Page 269