69 Iowa 77 | Iowa | 1886
Upon the application of the plaintiff, the court “ordered that the defendant pay to the clerk of this court, for the benefit of the plaintiff’s attorneys, fifty dollars,
The grounds upon which a divorce was asked were controverted in the pleadings filed by the defendant. The only adjudged cases cited by counsel in favor of their respective theories are Peel v. Peel, 50 Iowa, 521, and Maben v. Maben, 67 Iowa, 284. Neither of these cases has any material bearing upon the question to be determined. The English practice is referred to in 2 Bish. Mar. & Div., § 198; and it is there stated that the question as to the enforcement of a decree for alimony depends somewhat on the statutes of the several states of this country. This is undoubtedly true. Under the statutes of some of the states and the present English practice, a failure to comply with an order of the court
The order under consideration simply directs the payment of money, and, upon default being made, judgment therefor is directed to be entered. It is provided by statute that “judgments or orders requiring the payment of money, or the ’delivery of the possession of property, are to be enforced by execution. Obedience to those requiring the performance of any other act is to be coerced by attachment for contempt.” Code, § 3026. It is evident that the defendant, by his failure to comply with the order, was not guilty of a contempt, and, as the order must be enforced by execution, it seems necessarily to follow that he cannot be deprived of his right to defend the action because of such failure. Especially is this true in an action where a divorce is sought. Public policy requires that the marriage relation should not be sundered for an insufficient cause. Consent decrees for divorces cannot be tolerated or upheld. It is true, default may be made; that is, a party may decline to defend, and in such case a divorce may be obtained on the evidence introduced by the plaintiff alone; but where a party actually desires to defend, and files pleadings controverting the ground relied on, public policy requires that he should have the opportunity to be heard, unless such right is cut off by statute.
The judgment of the circuit court must be
Reversed.