21 Conn. 185 | Conn. | 1851
The question whether the plaintiff is entitled to relief or assistance, in this case; and, if she is, what should be its nature and extent; must depend on the character of her bill or petition.
The defendant, in the first place, treats this application as an original bill, addressed to a court of equity, the object of which is to obtain the assistance of that court, in enforcing, or enabling the plaintiff to enforce, the judgment of a court of law, rendered merely for a sum of money; the judgment or decree for alimony on the petition for a divorce, being claimed to be of that character; and he insists, that the ordinary principles established in chancery with regard to bills of that description, should be held applicable to this case, and are opposed to the claim of the plaintiff for any relief.
The application is not very technically drawn, and would certainly furnish a strong ground for this claim, if the case presented a judgment of an ordinary court of law in her favour for a mere debt or sum of money; and if that were the proper light in which it should be regarded, we are not prepared to say, that the objections of the defendant, to the interposition of the court to which it is addressed, should not prevail. Whether, however, in that case, the application should be dismissed, we do not think it necessary to determine, because the plaintiff does not press the application on that ground; and on looking at the main averments in it, and the general object which the plaintiff manifestly has in view, as derivable from the relief which she professes to seek, we are induced to consider it as what would be termed in a court of law, a motion, or, in a court of equity, a petition, for such interposition as is necessary for the enforcement of the order or decree allowing alimony to the plaintiff, on her petition for a divorce, and, therefore, for the requisite process, in the case in which that order or decree was pronounced, for the execution of such order or decree, rather than as a distinct, independent, original bill in equity, brought in aid of a judgment of a court of law, or of a decree of a court of chancery in another or former suit. We view the present application only as one for further proceed
But, in addition to the facts thus alleged and that prayer, it contains a statement of other facts independent of them, with regard to the manner, and motive, and avowed object of such concealment and disposition, accompanied with a petition for an attachment against the defendant as for a contempt of the authority of the court, which, if it is sufficient to warrant its interposition, and is supported by proof, is to be considered as a distinct branch of the application, presenting an independent ground for the exercise of its power, and one which, in our opinion, cannot, with propriety, either as it respects the general administration of justice, or the particular rights of the plaintiff in this case, be disregarded. This application being thus framed, we perceive no good reason why it should receive its technical or distinctive character from the allegations contained in it, which are urged by the defendant, rather than from those relied on by the plaintiff for that purpose, especially, if the latter constitute a valid ground for the interposition of the court to which the application is addressed, and it be true, as claimed by the defendant, that the former are insufficient to warrant any relief or assistance.
The case is, moreover, presented before us, only on its merits,
The view thus taken by us of the nature of this proceeding, disposes of the plea in abatement, as such, interposed by the defendant, founded, first, on an alleged variance between the application and the copy of it left with the defendant; and, secondly, on the pendency, when this proceeding was instituted, of an action at law previously brought in the superior court, for the recovery of the sum decreed to the plaintiff as alimony, on her petition for a divorce; and renders it unnecessary for us to consider whether, if this were an original bill in equity, of the character claimed by the defendant, it ought to be abated, on either of those grounds. The arguments urged in support of that plea, being founded on the claim that this is a bill of the description last mentioned, clearly cannot prevail as an exception of that kind, since it is determined not to be a proceeding of that character, but merely a motion or petition in the original proceeding for a divorce. But although, on such a motion or petition, no such technical exception is known or recognised as a plea in abatement, still, if the facts stated by the defendant in that plea are sufficient, to quash such motion or petition, it is but justice to him that he should have the benefit of them for that purpose.
With respect to the variance claimed, it is a mere verbal and immaterial discrepancy between the original and the copy, obviously happening accidentally, which produced no essential change of meaning between them, and which could not mislead the defendant as to the nature or object of the application. On a point of mere practice, (for this is nothing more,) respecting the notice to a party of a motion in a cause to be made by the other, it is hardly necessary to say, that it
Nor have we less doubt of the invalidity of the pendency of the action, brought by the plaintiff, on the decree for alimony, to quash this application. If such an action can be sustained, the most that can be said of the remedies sought by the two proceedings, is, that they are merely concurrent; and one, therefore, cannot supersede the other. It might, with as much force, be urged, that an action of debt or a judgment would prevent the issuing of a writ of execution on such judgment; as that the action at law founded on the decree in this case, should defeat this application. Indeed, it is not claimed, by the defendant, that the cases cited by him go to any such extent, or that they are applicable to this proceeding, in the view which we take of it.
We do not deem it necessary to discuss, with any minuteness, the question which has been much argued by the defendant, whether the jurisdiction conferred on the superior court to grant divorces in particular cases, with the other incidental powers respecting alimony, the change of the name of the wife, and the custody of the children of the marriage, is strictly of a legal or equitable nature. The decision of it, in a general form, would, in this case, lead to no profitable result. The jurisdiction on this subject is of a special character, and is given to the superior court generally, without designating, in terms, whether it is to be exercised as a branch of its legal or equitable powers; both of those different kinds of jurisdiction being, in this state, vested in the same judicial tribunal, and administered by the same judges, not distinguished in the exercise of their powers, by any difference of name, or style of address or description. As to the form and manner in which proceedings for divorce are to be commenced and prosecuted, it is very plain, from the act on that subject, that they were intended to be similar to those in suits in equity. Stat. tit. 7. ch. 2. p. 271. Indeed, independent of any express statutory regulations, in this respect, it is quite obvious from the nature and object of those proceedings, that such must be the case, since the form of no action or proceeding at law would be
In regard to the rights of the parties consequent upon the divorce, to which they may be adjudged to be entitled, where the decree respecting them does not, of itself, operate so specifically as to be the means of its own execution, but is, in order to be effectual, so framed as to require particular acts to be done by one of the parties, it was undoubtedly the intention of the legislature to invest the court, in this as in all other cases, where it has the right to render judgments, decrees and orders, with such power and authority as should be necessary to carry them into full effect. Such power is, from the nature of a judicial tribunal, necessary, and inherent in its very constitution. Without it, it would hardly be invested with the efficiency, or entitled to the respect, even of an advisory tribunal. In carrying their decisions into execution, courts will adopt those processes which are established by precedent, and have thus received the sanction of law, where they are adequate for the purpose, but where they are not, would feel authorized and bound to devise other modes, which should be effectual to that end, being careful, however, not to exceed its constitutional and legal authority. In the present case, however, we do not consider it necessary, if the plaintiff is entitled to the assistance of the superior court, that it should resort to any newly devised means of coercion against the defendant; since no such process has been applied for; and it cannot be anticipated, that the established and ordinary, though, happily, rare mode of proceeding, by attachment for contempt, will not be effectual.
The question then arises, whether it is competent and proper for the superior court, in the present case, to enforce its decree for alimony, by such process of attachment. It appears, that that court passed a decree divorcing the plaintiff from her husband, the defendant, and ordering, that he should pay to her, within the time therein mentioned, and which has long since elapsed, the sum of five thousand dollars, as alimony. It further appears, that he has abundant means at his command for the payment of said sum, but
Alimony is a certain part or proportion of the husband’s estate, which is allowed and assigned to the wife, upon their divorce. The word alimony is not used, although the idea conveyed by it is clearly embraced, in our statute of divorce, on which the decree in this case was founded, which provides, that “the superior court may assign to any woman so divorced, such reasonable part of the estate of her late husband, not exceeding one third part thereof, as in their discretion, the circumstances of the case will admit.” Stat. tit. 7. ch. 2. p. 275. The court does not, under this provision, decree and assign alimony, as a debt due to the wife, or as damages to be paid to her, by her late husband, on their divorce, but as a part or proportion of his estate, fixed by the court, in its discretion, and appropriated to her, and to which she thereupon becomes legally entitled. Such decree
Such being the character of the decree, in this case, we consider it analogous to those decrees of courts of equity, which enjoin specifically, or prohibit, the performance of particular acts, among which the granting of injunctions is of the most frequent occurrence. In those cases, it is usual with us, to prescribe a penalty for disobedience; but that is, in many cases, an inadequate or ineffectual provision; and although until somewhat recently, process for contempt has not been resorted to, in such cases, it is now frequently adopted; and we not only perceive no objection to it on
The disobedience of the defendant to the decree of that court, in this instance, is palpable, wilful, and utterly inexcusable; and therefore constitutes, beyond a doubt, what is termed a contempt, which is well described, by an eminent jurist, (Judge Swift,) who defines it to be “a disobedience to the court, by acting in opposition to the authority, justice and dignity thereof,” and adds, that “it commonly consists in a party’s doing otherwise than he is enjoined to do, or not doing what he is commanded or required by the process, order or decree of the court; in all which cases, the party disobeying is liable to be attached and committed for the contempt.” 2 Sw. Dig. 358.
We therefore advise the superior court, to issue an attachment for contempt, against the defendant, on his not shewing cause to the contrary, on a rule for that purpose.
Attachment for contempt issued,
As the ulterior proceedings, in this case, may be of general interest, and useful in practice—to the profession at least—I subjoin a statement thereof ex relatione amici.
At the term of the superior court, in October, 1851, the case, having come back from this court, Dutton and Loomis, soon after the commencement of the term, moved for process of contempt against the defendant. This was resisted, by Hawley, his counsel, claiming, that the decision of this court was only, that process should issue, if the defendant refused to disclose, or did not make a satisfactory disclosure. Application was thereupon made to Ch. J. Church, and a statement of the decision obtained from him. The counsel for the plaintiff then moved the court to assign a time for the defendant to appear, and shew cause why such process should not issue. The court assigned a day about a fortnight thereafter. Before the day arived, however, the plaintiff’s counsel, fearing that the defendant would leave the state, and thus evade the process, drew up an application to the court, stating, that the defendant had, notwithstanding the decision of this court, refused to pay the 5,000 dollars alimony, and had spoken with con