68 Mo. App. 57 | Mo. Ct. App. | 1896
D£ony:E¿tr'king out answer. This is an action for divorce. Pendente lite, the circuit court gave judgment for plaintiff for a certain sum for alimony and ordered execution to go therefor, if not paid by a date therein stated. The defendant having failed to . _ _ discharge the judgment so rendered against him, the court on motion of the plaintiff struck out the answer and cross bill, and at the trial refused to permit defendant to introduce any evidence in his behalf. There was a decree for the plaintiff from which the defendant has appealed.
The only question which we are obliged to decide is whether the circuit court erred in striking out the defendant’s answer and cross bill and precluding him from introducing any evidence in his defense.
The statute relating to divorce and alimony provides that where a party neglects or refuses to pay alimony, as adjudged, the court shall have power to award an execution for the collection thereof, or to enforce the performance of the judgment, or order, by
A party may be put in contempt for disobeying a judgment or decree for the performance of acts which are within his power and which the court may properly adjudge and decree to be done. But the judgment or decree must be for the performance of some specific act other than for the mere payment of money. This being so, had the court the power to go even so far as to prevent the' defendant from interposing a defense to the merits of the plaintiff’s petition, while he was in default in discharging the alimony judgment? Walker v. Walker, 82 N. T. 260, with the cases cited by the plaintiff, support the affirmative of the proposition embraced in the query just propounded. The ruling declared in
These last cited cases hold that although defendant may be contumacious, the court can not deprive him of his right of defense. In Gordon v. Gordon, supra, it is said that: “If the court had the power to strike out the answer, it necessarily had the power to refuse to hear any evidence the defendant might offer in answer to the bill, or in support of the matter set up in the answer. A rule of this character once established in divorce cases, would not, in our judgment, have a beneficial effect upon the rights of parties, and in many cases, the tendency of the rule would be to bring the law into disrepute. Under our practice, divorces are granted and marriage contracts set aside quite as readily as could be desired, if proper regard is given to the well-being of society; but should the defendant be denied the right of all defense for nonpayment of alimony, in many cases, doubtless, divorces would be granted and marriage contracts set aside upon false and insufficient evidence, for the reason the defendant was denied the right to expose a false and fictitious case.”
Unless the defendant is permitted to plead his defense, and offer proof thereof, how can the conscience of the court be satisfied of the justice of the plaintiff’s complaint? The defendant’s answer and evidence may call to the court’s attention a state of facts that would show that to grant the plaintiff a divorce would be not only contra bonos mores, but a subversion of the rights of third parties not before the court. We think, for the foregoing reasons, it will best subserve the public
. If the defendant has property which can be taken in execution in satisfaction of the judgment, the plaintiff has only to cause the writ to issue for that purpose, but whether he has or has not such property, we are not of the opinion that a failure on his part to discharge the judgment, authorizes the court to strike out his answer, and to refuse to allow him to introduce such pertinent testimony as he may offer in support thereof.
The judgment will be reversed and the cause remanded.