79 N.Y.S. 268 | N.Y. App. Div. | 1902
Lead Opinion
This is an appeal from an order of the Special Term of the Supreme Court, adjudging the defendant guilty of contempt of court for an alleged failure to pay alimony.
The original order was personally served on the defendant, who paid $25 weekly until November 25, 1901. An order was then obtained by the defendant reducing the amount of plaintiff’s temporary alimony to $20 a week. Under the original order as modified, the temporary alimony was not payable until plaintiff turned
The principal question is, was there such an irregularity or defect in the granting of the order under which the defendant was arrested and imprisoned as to require that it be set aside.
It is urged by the learned counsel for the appellant that the order punishing the defendant for contempt should have been served upon him personally instead of upon his attorneys; that a personal demand should have been made upon the defendant to comply with the terms of the order, and that he should have been given an opportunity to be heard before punishing him for contempt.
It has been frequently held that before a party can be adjudged finally guilty of contempt and punished, he should have an opportunity to be heard. In the case at bar that opportunity was not given. The defendant, when he was arrested, was not brought before the court for the purpose of being heard and to enable him to purge himself of the alleged contempt if he could do so.
Ho principle is more vital to the administration of justice than that no man should be condemned in his person or property without notice and an opportunity to make his defense.
The Constitution of the United States declares that no person shall be deprived of life, liberty or property without due process of law, (14th amendt. § 1.) A provision of the same words is contained in the Constitution of this State. (Art. 1, § 6.) Punishment for contempt involves the loss of liberty or property.
The meaning of the words “ due process of law,” as used, in both Constitutions, has been explained and defined by very .able and learned judges. I need only refer to some of the cases in which these opinions may be found.
In Stuart v. Palmer (74 N. Y. 191) Judge Earl said: “Due process of law requires an orderly proceeding adapted to the nature of the case in which the citizen has an opportunity to be heard, and to defend, enforce and protect his rights. A hearing or an opportunity to be heard is absolutely essential.”
In People ex rel. Witherbee v. Supervisors (70 N. Y. 234) Judge Folger, in speaking for the court, said: “ Due process of law requires that a party shall be properly brought into court, and that he shall have an opportunity when there to prove any fact which, according to the Constitution and the usages of the common law, would be a protection to him or his property.”
It would seem, therefore, that the Constitution, as interpreted by the courts of this State, means that due process of law requires that before a person can be punished by imprisonment for a contempt in disobeying an order, he must have notice of it and an opportunity to be heard before a court clothed with authority to act and decide the questions involved.
It is urged by the learned counsel for the plaintiff that the service on the defendant’s attorneys of the order to show cause why the defendant should not be punished for contempt was authorized by section 17.73 of the Code of Civil Procedure, and for the failure to pay the amount ordered defendant was liable to be adjudged in
Section 2269 of that chapter and title provides that “ The court or judge, authorized to punish for the offense, may, in its or his discretion, where the case is one of those specified in either of the last two sections, and, in every other case, must, upon being satisfied, by affidavit, of the commission of the offense, either :
“ 1. Hake an order, requiring the accused to show cause before it, or him, at a time and place therein specified, why the accused should not be punished for the alleged offense; or,
“ 2. Issue a warrant of attachment, directed to the sheriff of a particular county, or, generally, to the sheriff of any county where the accused may be found, commanding him to arrest the accused, and bring him before the court or judge, either forthwith, or at a time and place therein specified, to answer for the alleged offense.”
One of the preceding sections referred to (§ 2268) provides that “ Where the offense consists of a neglect or refusal to obey an order of the court, requiring the payment of costs, or of a specified sum of money, and the court is satisfied, by proof, by affidavit, .that a personal demand thereof has been made, and that payment thereof has been refused or neglected, it may issue, without notice, a warrant to commit the offender to prison, until the costs or other sum of money, and the costs and expenses of. the proceeding are paid, or until he is discharged according to law.”
It will be seen from the above section of the Code that there are two methods of procedure against a party for such misconduct. The court shall either grant an order, that the accused party show cause at some reasonable time therein specified why he should not be punished for the alleged misconduct, or issue an attachment to arrest such party and to bring him before the court.
But whichever mode of procedure is adopted the judge must be satisfied by affidavit of the commission of the offense. Until that has been done no order to show cause can .be issued. The offense cannot be committed until the order directing the payment of alimony has been brought to the attention of the defendant and demand has been made upon him personally that it be paid, and
The statute under which this proceeding is instituted does not specify in what way the order to show cause, with the affidavits on which it was founded, shall be served upon the party accused.
The method of serving papers in an action, as prescribed in article 3 of title 6 of chapter 8 (§§ 796-802) of the Code of Civil Procedure, authorizes in most cases service of a copy on the attorney of the party to be served, but this rule does not apply to the service of papers in contempt proceedings. Section 802 of the Code of Civil Procedure expressly provides that the article referred to does not apply to the service of a summons or other process or of a paper to bring a party into contempt, or to a case where the mode of service is specially prescribed by law. The authorities are numerous that personal service of the original process claimed to be disobeyed is necessary to bring the party into contempt.
In Sandford v. Sandford (40 Hun, 540) it was held that a party cannot be regarded as guilty of contempt for failing to comply with the directions contained in the order until a copy thereof has been served upon him.
In McCaulay v. Palmer (40 Hun, 40) Justice Daniels, in delivering the opinion of the court, says: “ To bring a party into contempt it is the practice of the court to require the order which he is charged with violating to be served personally upon him. This is to be done by delivering to him a copy of the order, and at the same time exhibiting to him the original. The consequences of a contempt are serious, and often severe, in the punishment pronounced by the court, and before a party can be subjected to them a strict compliance with the practice has been required to be observed.”
It was remarked by Justice Rumset in Bradbury v. Bliss (supra) that “ In any case, before a person can be punished for a contempt in disobeying an order, he must have had notice of it and an opportunity to become acquainted with its provisions, and a demand must have been made upon him to do the thing which the order required of him.”
In this case the defendant was adjudged guilty of contempt and a warrant of commitment was issued and the defendant arrested and imprisoned without any previous notice of the proceeding, or an opportunity to purge himself of the alleged contempt. The defendant was never personally before the court. The order, therefore, for his arrest and imprisonment was unauthorized and must be vacated.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the defendant discharged from custody.
McLennan and Hiscock, JJ., concurred; dissenting memorandum by Spring, J., in which Williams, J., concurred.
Dissenting Opinion
This action is for an absolute divorce. By an order granted May 29, 1901, the plaintiff was allowed alimony at the sum of twenty-five dollars per week. A certified copy of this order was served upon the defendant personally September 14, 1901, and he complied with it for a time by paying the sum awarded, although somewhat delinquent in making the weekly payments. Upon his application the order was modified by an order of the Special Term granted December 6, 1901, reducing the allowance to twenty dollars per week.
It was contended by the defendant upon the application for the reduction of this award that the plaintiff had in her possession a large quantity of household goods and furniture belonging to him, and she was directed by the order to transfer this property to the defendant and no alimony was to be payable until she complied with this direction, which she did at once. Thereafter the defendant
This proceeding was not, however, instituted pursuant to section 2268 of the Code of Civil Procedure. The basis of it is section 1773, which provides for the enforcement of payment by punishment for contempt when there has been a default of the husband in paying the sum allowed for the maintenance of his wife. That section prescribes that the proceedings to punish the husband shall be in accordance with title 3 of chapter 17 of the act. The proceeding was evidently commenced under section 2269, which provides for a warrant of attachment to the sheriff, and is based upon an affidavit showing the commission of the offense and upon an order to show cause. There is no specific requirement in that section that a personal demand is
The order should be affirmed, with ten dollars costs and the disbursements of this appeal.
Williams, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied.