18 Wash. 158 | Wash. | 1897
The opinion of the court was delivered by
The respondent filed a petition in the court below ashing for an order upon the appellant Ella W. Smith, his former wife, now divorced, to place the minor children of said appellant and respondent in the care of a suitable person to be selected by the court, in order that the respondent might see said children once a week, he having alleged in his petition that the appellant had refused to- allow him to visit them in accordance with the order of the court theretofore made. This petition was moved against by appellant on the ground that the court had no jurisdiction to hear it; and the appellant also answered, setting up the fact that the respondent had not paid the alimony which had been awarded to her in the original divorce proceedings in the ease; and there is no attempt on the part of the respondent to show that he had obeyed the mandates of this court, or to purge himself from the contempt he was in for not paying the same. It is true that under the decree of
It affirmatively appears from the affidavit of the respondent that the decree of this court had not been obeyed so far as the payment of this alimony was concerned. The showing of that fact was sufficient to have defeated this application. A party cannot remain in contempt in an equity proceeding, and at the same time ask the court to grant him priviliges which are conferred upon him by the decree which he has refused to obey; and it is a general rule that he can not be heard in a cause until he has cleared his contempt. And, especially, a court of equity will refuse to a defendant in contempt the benefit of proceedings in it when asked by him as a favor until he has purged himself of his contempt. Brinkley v. Brinkley, 47 N. Y. 40, and cases cited.
And in Vowles v. Young, 9 Ves. 173, it is stated by Lord Eldon that it is a general rule that a party who has not cleared his contempt can not be heard.
*160 “ It is a general rule, especially in courts of equity, that a party in contempt will not be heard to ask any favor of the court, in the case in which the contempt occurs, nor permitted to take any affirmative steps in the particular litigation, except only such as are necessary to his defence against the charge of contempt, until he has purged himself of such charge.” Papal je, Contempts, §135; Beach, Modem Equity Practice, §365, and cases cited; 2 Bishop, Marriage, Div. & Sep., §1095; 1 Enc. PL & Pr., 436.
In 4 Enc. PL & Pr., p. 805, the rule is thus announced:
“ "No rule of law seems more widely prevalent or better established than that a court whose authority has been put to naught will extend no favors or privileges to the party in contempt until he has acknowledged its authority by purging the offense.”
In fact, this is the unbroken authority, and for the most obvious reasons the rule could not be otherwise. The judgment in this case will be reversed with instructions to the lower court to dismiss the proceeding at respondent’s cost.
Scott, C. J., and Anders, Pea vis and Gordon, JJ., concur.