154 Md. 267 | Md. | 1928
delivered the opinion of the Court.
The parties to this proceeding were married on January 28th, 1904, in Kent County, Maryland, where they still reside. On June 7th, 1926, Ella R. Skirven, the appellee, filed in the circuit court for that county a bill of complaint against her husband, the appellant, in which she prayed that she be divorced a mensa et thoro from him, and that he be required to pay her permanent alimony, alimony pendente lite, and a reasonable allowance for counsel fees and the expenses of the suit. As a ground for that relief she stated that the defendant had treated her with great harshness and cruelty, had done everything he could to harass her and make her life miserable, and had failed to contribute to her support,-although he was in comfortable circumstances, while-she was wholly destitute. The defendant appeared and answered the bill, denying in his answer all allegations of facts, which would entitle the complainant to the relief prayed.
On the bill an order nisi was passed, allowing the complainant fifty dollars a month alimony pendente lite, and twenty-five dollars as a counsel fee. The defendant set up as cause why that order should not be made absolute “that: he was an old man, being forty-nine years of age, and has no means of support other than what aid he receives from his father.” A hearing was had, testimony was taken, and
“That she has received no money from her husband, the defendant in this cause, as alimony pendente lite, nor has her counsel received the twenty-five dollars counsel fee as the said defendant was ordered to pay by order of this honorable court heretofore passed.
“That before the defendant is entitled to an order of further proceedings compelling the plaintiff to take the testimony in this case, he is required to have first complied with all the orders of this court against him directed, and having failed to comply with said orders he is not in a position to invoke the aid of this honorable court in his behalf.”
Nothing' further was done in the case until June 4th, 1927, when the defendant again filed a petition in which he “respectfully petitioned the court for further proceedings on the part of the plaintiff.” That petition was overruled by
The; order appealed from states that at the time it was passed the defendant was in “flagrant default” in failing to comply with a previous order of the court, and while the record does not disclose what order the court had in mind, counsel for the appellant concedes in his brief that it was van order requiring the defendant to pay alimony and counsel 'fees, and in effect he admits that the order of the trial court was based upon a finding that defendant was in con.'tempt, for in stating the grounds for his appeal he says: “The principal question in this appeal is whether defendant, who is in contempt of court, has an absolute right to demand further proceedings upon the part of the plaintiff to take testimony in support of the allegations contained in her bill of complaint, such that it is the legal duty of the court, upon the request of the defendant, to force plaintiff to go on.”
Conceding so much, there is little left in the case;. This court, in Gilbert v. Arnold, 30 Md. 29, said:
• “It is laid down as a general rule, by Lord Chief Justice Baron Gilbert, that a party in contempt is never to be heard, by motipn or otherwise, until' he has fully purged his contempt and paid the costs. Gil. For. Rom. 102; 1 Daniell's Civ. Pr. 488. And in Newman v. Osbadiston, 2 Bro. P. C. 276, where a defendant was in contempt for not putting in his examination pursuant to an order of the court, afterwards in order to avoid a writ of sequestration, moved that further process of contempt be stayed upon his undertaking to pay in a week’s time, what should appear to be due the plaintiff, but the court refused to allow him to make the motion until he had cleared the contempt.
“It was also held in Hewitt v. McCartney, 13 Ves. 560, that a mortgagor, defendant to a bill of foreclosure, being in contempt, could not move under the statute of 7 Geo. II,
The rule as stated in that case is somewhat befogged by a modifying expression used in a number of cases as well as in certain text books and digests, to the effect that it applies only to “matters of favor.” Beach on Modern Equity Prac., par. 556; 13 C. J. 91. But there seems to be no recognized rule for determining what distinction there is in a court of equity between a matter of favor and a matter of right. In most cases litigants in courts of justice are there to assert rights and not to receive favors. Ordinarily a favor is a voluntary act of grace, kindness, or indulgence, which may be given or withheld at pleasure, and an act of that character is somewhat out of place in a court of justice in cases where what is given to one is taken from another, and, if contempt only disqualified the guilty litigant from asking favors, his loss would be slight. So far as we know, the rule, as stated in Gilbert v. Arnold, supra, has not been devitalized in this state by any such modification, and here the rule is that, while one adjudged guilty of contempt may attack the finding directly, he cannot, so long as it stands unimpeached, be permitted as a matter of right to make any motion, file any petition, or assert any claim for relief, in the particular suit in which the contempt has been adjudicated.
The court would be helpless indeed if the defendant could as a matter of right demand that it order the plaintiff, who was destitute and without any means to defray the cost of the litigation, to prosecute the suit, when the defendant through his own default and refusal to obey the court’s orders had made it impossible for her to do so. White v. White, 148 App. Div. 883, 132 N. Y. Supp. 1043.
The defendant, therefore, if he was in contempt, had no right to insist that the plaintiff proceed with the case until he purged himself of it, but he contends that he was not
' The order allowing alimony and counsel fees, passed nearly a year before the order from which this appeal ivas taken, still stands in its original force and vigor. The order adjudging appellant guilty of contempt for failing to comply with that order, passed some ten months before he filed his last petition for further proceedings, still stands Unrevoked and unmodified. With the record in that state, when the "court refused to order the plaintiff to further proceed Until appellant had complied with the order of July 13th, 1926, it imposed no Unreasonable or onerous condition on
The appeal would also have to be dismissed for another reason. As matter of necessity, courts have some discretion in controlling the course of litigation pending before them, and acts done in the exercise of that discretion will not be reviewed unless there has been a clear abuse of it. Under all the facts and circumstances of this case, the demand that the plaintiff be required to proceed further was addressed to that discretion, and there being no evidence of any abuse of it, its exercise will not be reviewed by this court.
For both of these reasons, the appeal will be dismissed.
Appeal dismissed, with costs.