Matter Indirect Criminal Contempt

This is an original proceeding in on the petition of Don McMilian alleging his unlawful detention and imprisonment by the Sheriff of Jackson County. 1 Our writ issued commanding that return be made showing such legal cause as might be for the detention. The return exhibited a judgment of contempt found against McMillian (sic) by the Circuit Court of Jackson County and a warrant ordering McMilian's commitment for a term of ten days as punishment. McMilian's response to the return admits prospective detention pursuant to the warrant but denies the lawfulness of the order. As briefed and argued here, two points are asserted: (1) the acts committed were not within the plenary jurisdiction of the court to punish for contempt, and (2) the process was procedurally defective. In , the petition is a preliminary pleading which drops out of the case when the return is made. That return, together with the traverse by way of reply, form and define the issues in the case. Ockel v. Riley, 541 S.W.2d 535, 536 (Mo. banc 1976); Rules 91.16 and 91.28. Because the pleadings and exhibits ordinarily comprise the entire record in , Rule 91.28 requires that a denial of the return be under oath. If the traverse is not verified, the allegations of the return must be taken as true. Houston v. Hennessey, 534 S.W.2d 52, 54 (Mo. App. 1975). In this case, the reply denying the return was neither signed by McMilian nor verified, and the cognizable and relevant facts are therefore derived from the return and the hearing transcript and may be succinctly stated.