15 Ga. 405 | Ga. | 1854
By the Court.
delivering the opinion.
Robert McMillen, the attorney of defendant, objected to the granting of this order, contending that the failure to pay the alimony, was not a contempt; and if it was, that it did not deprive the defendant of his right of resisting the libel. He further asked the permission of the Court to bring the defendant into Court, in order that he might purge himself of the alleged contempt, by showing his inability to comply with the judgment of the Court, to pay temporary alimony. ■ The Court over.ruled the motion, holding, that he would not revoke or modify the order of the Court, directing the defendant to be attached, for failing or refusing to comply with the order of the Court, to pay temporary alimony. He further decided, that under the circumstances, John Cason should neither be heard, personally,
To all of which decisions, counsel for defendant excepted.
No law or practice has been produced, to justify the judgment of the Court below, in this .case. We are entirely satisfied that none such can be shown. The contempt imputed to the defendant, was for disobeying a rule of the Court, requiring him to pay temporary alimony. Attachment was the appropriate punishment; and the record shows that this had been granted; but we shall search in vain, for a precedent, to sustain the Judge, in denying to the party his right to defend the libel, because he had failed or neglected to perform his duty in another proceeding. Especially, when it ivas the plaintiff, and not the recusant husband, who was pressing the cause to trial; and still moro especially, when the attorney of the defendant was ashing for the privilege of suspending the cause, until his client could bo sent for and brought into Court, to. purge himself from the contempt which he was charged to have committed. Why was this privilege withhold ? Why should the party be punished by imprisonment, to say nothing of the loss of his right to be hoard, in defence of the libel, provided he could clear himself of the alleged contempt ?
We deem it unnecessary to notice the attempt which has been-made to enlist the sympathies of the Court, in behalf of this-good lady. It is the usual ease of “ Patience on a monument,”' &c. Instead of “ sweet seventeen, with the bloom of the-plumb, unbroken, upon her cheek, and all the blossoms of youthful innocence, flowering and flourishing around her”, the testimony shows, that this much injured wife, was a buxom young widow,. (I suppose,) with a strapping daughter of eight or ten years, old, who allied herself to the defendant, a hoary and dilapidated octogenarian of eighty-four ! Her own evidence shows, (for there was none other admitted before the Jury,) that in the only fight they ever had, she fell on top. And we are assured by Major Harris, who has represented the venerable husband, with his usual zeal and ability, that in every conflict between this couple, his veteran client was worsted. And we doubt not
Judgment reversed.