Elizabeth Brinkley, Respondent, v. Hugh L. Brinkley, Appellant

Elizabeth Brinkley, Respondent, v. Hugh L. Brinkley, Appellant. An order adjudging defendant in contempt and prescribing a punishment, ' is an order made in a special proceeding, and affects a substantial right, and if final, is appealable to this court. If however, the order is conditional and the punishment is not inflicted . absolutely, but it is in the power of defendant to avert it, it is not a final order, and is not appealable. The Supreme Court is not limited to punishment by fine and imprisonment, in enforcing obedience to its orders; but it has control over its own proceedings, and can refuse the benefit of them to the party in contempt when asked as a favor, and can prevent him from taking any aggressive proceedings against his adversary; hut it has no power to stay him in his proceedings by motion or appeal, where the object is to rid himself of the alleged contempt, or show that the order which he did not obey was erroneous. (Argued November 28, 1871; decided December 19, 1871.) Appeal from an order of the General Term of the Supreme Court in the first department, affirming an order of the Special Term, adjudging defendant in contempt, etc. This action is brought to obtain a limited divorce, under article 4 of title 1 of chapter 8 of part 2 of the Revised Statutes. An order was made and entered in the action on the 8th day of March, 1871, requiring the defendant to pay to the plaintiff forthwith, upon service of the order on his attorney, the sum of $1,000, for her expenses in conducting the suit, and the sum of twenty-five dollars per week as alimony, commencing on the 20th day of October, 1870, the date of issue, up to the date of entry of the order (which amounts to $496.42); also that he thereafter pay her twenty-five dollars a week alimony, until the final determination of the action, and that within thirty days from the said date of entry he give her a bond in $5,000 to secure ■ such subsequent payment. The order was served upon defendant’s attorney March 9th, 1871, and payment of the sums directed to be paid duly demanded of him, and he declined to pay the same. On the 22d day of March, 1871, a certified copy of the order was personally served upon the defendant, at the city of Memphis, Tennessee, and payment of said sums of money duly demanded of him, and he also refiised payment. On the 17th day of March, 1871, the defendant, without having complied, or offered to comply, with its terms, or any of them, served a notice of appeal from said order. • The plaintiff, upon these facts, obtained an order requiring the defendant or his attorney to show cause, at a time and place therein mentioned, why the defendant should not be punished for disobedience of the order directing the payment of alimony, as for a contempt. The motion was heard at a Special Term, on the 27th day of March, 1861. The court granted an order adjudging defendant in contempt, and further ordering as follows: “ That unless the said defendant, Hugh L. Brinkley, within ten days from the entry of this order and the service of a copy thereof on his attorney, shall in all respects, except as to time, comply with said order of March 8,1871, and pay ten dollars costs of this motion, the answer filed and served by him in this action be stricken out, and that this action proceed as if no answer therein had been interposed, and that it be referred to John Y. W. Doty, Esq., counselor-at-law, to take proof of all the material facts charged in the complaint.” And “ that in the meantime, and until the said defendant shall comply with said order of March 8, 1871, all proceedings on the part of the defendant in this action, including his proceedings on his appeal from the said order of March 8, 1871, be and the same hereby are perpetually stayed.” On the 4th day of April, 1871, a certified copy of said order was duly served upon the attorney for the defendant, in accordance with the directions it contained. The defendant did not avail himself of the privilege therein accorded to him of complying with the terms of the former order within ten days, allowed the time to elapse without complying, and took an appeal to the General Term. Wm. R. Antkon, for appellant. The matter was ipso facto removed to the appellate court, and the court below had no power to stay proceedings upon it. (Clichman v. Clichman, 3 Howard Pr. R., 365; 1 Comst., 611; Graham Pr., 947½; Leslie v. Leslie, 6 Abb. N. S., 193.) Plaintiff was not an. actual resident of this State at the commencement of the action. (Somerville v. Lord Somerville, 5 Vesey, 787; Matter of Fitzgerald, 2 Caines, 317; Roosvelt v. Kellogg, 20 Johns., 210; Boardman v. House, 18 Wend., 512; Frost v. Brisbin, 19 Wend., 14; N. Y. S. C., 1858; Chaine v. Wil son, 8 Abb., 78; 1 Bosw., 673; Fisk v. C. & R. I. R. R. Co., 53 Barb., 472; Bishop on Marriage and Divorce, § 121.) The order should be vacated, because another action for the same cause is pending in Tennessee, in which the chancellor has decided against the application for alimony. Brent v. Armfield (4 Cr. C. C., 577); Bowne and Seymour v. Joy (9 Johns. 221), and Walsh v. Durkin (12 Johns., 99), are not applicable to actions of divorce. The question of alimony is res adjudioata, in consequence of the decree of the Memphis Chancery Court. (Walsh v. Durkin, 12 Johnson R., 101; Bowne and Seymour v. Joy, 9 id., 221;. Taylor v. Bryden, 8 Johnson R., 175; Monroe v. Douglass, 4 Sandf. Ch., 126; Lozier v. Westcott, 26 N. Y., 146.) A. O. Brown, for respondent. The adjudication of the court at Special Term upon the question of contempt, is final and cannot be reviewed by appeal. (Mitchell's Case, 12 Abb., 249, and cases cited; Erie R. Co. v. Ramsey, MSS. decided June 5, 1871.) The plaintiff was an actual resident of this State at the commencement of the action. (2 R. S., Ed’s ed., 154; Vance v. Vance, 25 How. Pr., 497 and 596; Bartlett v. City of N. Y., 5 Sanf., 44; Matter of Hawley, 1 Daly, 531; Chaine v. Wilson, 8 Abb., 78.) The pendency of the action between the same parties in Memphis was no bar. (Kelsey v. Ward, 16 Abbt., 98; People v. Northern R. R. Co., 53 Barb., 98; Monroe v. Douglass, 1 Seld., 447, 452; Ahrenfeldt v. Ahrenfeldt, 1 Hoff. Ch., 50; Ward v. Ward, 5 Abb. N. S., 145; Casey v. Casey, 2 Barb., 59; Pomeroy v. Pomeroy, 1 Johns. Ch., 606; Johnson v. Johnson, 6 Johns. Ch., 163; Smith v. Smith, 4 Paige, 92; McIntosh v. McIntosh, 12 How. Pr., 289; Hoffman v. Hoffman, 35 How. Pr., 384; Griffin v. Griffin, 23 How. Pr., 183; Henry v. Henry, 17 Abbt., 411; Bowne & Seymour v. Jay, 9 Johns., 221; Walsh v. Darkin, 12 Johns., 99.; Mitchell v. Bunch, 2 Paige, 620; Burrows v. Miller, 5 How. Pr., 51; Cook v. Litchfield, 5 Sanf., 342; Hecker v. Mitchell, 5 Abbt., 453 ; Williams v. Ayrault, 31 Bar., 364; Lorillard Fire Insurance Company v. Meshural, 7 Robt., 314.) The service of the order directing the payment of alimony, as made, was sufficient to charge defendant with contempt in not obeying it. (People v. Brower, 4 Paige, 405; Hull v. Thomas, 3 Edw., 236; People v. Compton, 1 Duer, 512.) The court will not hear a party in contempt. (Clark v. Drew, 4 Condensed Eng. Ch., 344; S. C. Russell & Mylne, 103; Latham v. Latham, 2 Swa. & Tris., 299; Strong v. Strong, 1 Abbt. N. S., 358; Johnson v. Pinney, 1 Paige, 646; Rogers v. Patterson, 4 Paige, 454.) [MAJORITY — Folger, J.] Folger, J. Does there an appeal lie from the order complained of, to this court ? It is an order adjudging the defendant in contempt, and is made before final judgment in the action. In the N. Y. and N. H. R. R. v. Ketcham (3 Keyes, 24), decided in 1866, the Special Term made an order that unless the defendants comply with certain directions therein contained, an attachment should issue against them for a violation of the injunction order theretofore made in the action. This was affirmed, on appeal to the General Term. The General Term however, on application of the defendants, vacated its order of affirmance, and made an order reversing that of the Special Term, unless thé defendants do the thing particularly mentioned in the last order of the General Term. From this last order the defendants appealed to this court. It was here held that it was not a final order affecting a substantial right in a special proceeding; that it was made in the action, and though it might affect a substantial right, it was not a final order, but one preliminary to punishing the party alleged guilty of a contempt. The appeal was dismissed. There is, perhaps, an intimation that if it had been a final order, the appeal might have been entertained. In Pitt v. Davison (37 N. Y., 235), judgment had been rendered, adjudging a specific performance of a contract, and directing the defendant to convey. He refused to obey.. On the return of an order to show cause etc., the Special Term adjudged him guilty of contempt, and ordered him to be committed until he should obey; He moved to set aside this order, and the Special Term denied the motion. On appeal, the General Term reversed the order of denial, and set aside the order of imprisonment. From the order of the General Term an appeal was taken to this court. Here it was held, entertaining the appeal, that the order of the Special Term was one in the action. The order of the General Term was reversed. In Batterman v. Finn (March, 1869, 40 N. Y., 340), the defendant had violated an injunction order. The action was still pending. On order to show cause, the Special Term adjudged the defendant in contempt, and ordered an attachment to issue. The General Term (it is to be gathered from the report of the case) reversed the order, and from the order of reversal an appeal was taken to this court. It was here held, that as the Code stood when the appeal was taken, it could be sustained, if at all, only under subdivision three of section eleven, as from a final order affecting a substantial right in a special proceeding; but that it was not in a special proceeding, and that a denial of an attachment did not affect a substantial right, and the appeal was dismissed. But a quere was thrown out, whether, if the order of the Special Term had been affirmed in the General Term, and the defendants had appealed, it might not have been otherwise. In Sudlow v. Knox (decided in June, 1869, reported in 7 Abbot, Pr. Rep., N. S., 411), a judgment had been recovered in a former action against the defendant; and in proceedings supplementary to execution therein, the plaintiff in this action had been appointed receiver. He had brought an action against the defendant which was still pending, and a reference had been ordered to take and state an account. For a refusal of the defendant to leave his books of account with the referee, the defendant was by the Special Term, adjudged guilty of a contempt, and fines were imposed upon him, and he was ordered committed until he produced and left the books with the referee. On appeal to the General Term, the order, with a modification of the amount of fine was affirmed. From the order of General Term an appeal was taken to this court. This court, composed of the same judges who had given the judgment in Batterman v. Finn, supra, found presented to them the facts which it had, in that case intimated, would require a different adjudication; and it held upon them, that the order of the Special Term was one not made in the action, but was a final order, made in a special proceeding, affecting a substantial right, and was appealable to this court, and reviewed the order and affirmed it. The real distinction in the cases would seem to rest upon this, that in N. Y. and N. H. R. R. v. Ketchum, and in Batterman v. Finn, the order appealed from was preliminary, while in Sudlow v. Knox it was final. This remark will not apply to Pitt v. Davison. There is, perhaps, a want of perfect harmony in these cases. But the decision in Sudlow v. Knox was evidently the result of deliberate consideration, and is sustained by the reasoning of the opinion delivered. It pointed out a just and reasonable practice in such cases; and having been expressly followed in The Erie Railway v. Ramsey, 45 N. Y., 637, that practice may be considered as fixed; and see The People v. Sturtevant (9 N. Y., 5 Seld., 263). We must hold then, that this order adjudging the defendant in contempt and prescribing a punishment therefor, is made in a special proceeding, and affects a substantial right. If it is a final order, it is appealable through the General Term to this court. It will be noticed, upon a reading of the order, that it does not, as to a part of the specified punishment, absolutely impose it upon the defendant. It is an order, in the first part of it, that unless within ten days he complies with the order which he had refused to obey, and pay ten dollars cost, his answer should be stricken out, and the cause should proceed as if there were no answer, and that it be referred to a referee named to take proofs. The order, so far, is conditional. The punishment is not inflicted absolutely, but it is in his power to avert it; and if he does not avail himself of the condition, there must be proof put on file of his failure so to do, and another order of the court making peremptory and absolute that which, by this order is but conditional. True, parties for the purposes of this appeal have stipulated that he has not availed himself of the condition. But that, though it may be proof to this court, is not yet proof to the court which made the order. And there is nothing to show this court that there has been an absolute and final order, which has actually imposed upon him the threatened penalty of striking out his answer and the like. (See Adams v. Fox, 27 N. Y., 640, and Butler v. Lee [Ct. of App.], 33 How. Pr. R., 251; and see also, Weston v. City of Charleston, 2 Peters’ U. S., 449, 464.) There is then as yet no final order in that particular from which an appeal may be taken. It is suggested that the order in that respect is appealable as falling within the last paragraph of sub. 4, section 11, of the Code, as amended in 1867 and 1870 (see People v. Auditor, etc., 1 Albany Law Jour., 60), as being an order affecting a substantial right and an order to strike out an answer. But there is the same difficulty here. The order does not strike out the answer. It is an order that the defendant is in contempt, and that he purge himself of that contempt and submit to the direction, and unless he does so, his answer be stricken out. The answer yet remains, for aught that appears, upon the record. It is not yet stricken out; and whether it will be or not depends upon further action of the court below. Won constat but that on an application for an order absolute to that effect somewhat may appear to the court and cause it to withhold such order. The defendant may not in advance ask the judgment of this court, whether the court below has the power to do what it has not yet done. The appeal from so much of the order cannot be entertained. But the Special Term went further and ordered that in the meantime (i. e., until he complied with the former order, for disobedience of which he was in contempt), all proceedings on the part of the defendant in the action, including his proceedings on his appeal taken from the former order to the General Term, be and the same were thereby perpetually stayed. This is in the view of a majority of this court an absolute and final order, and falls within the principle asserted in Sudlow v. Knox (supra). It is, therefore, as to so much of it appealable. We have no doubt but that the Special Term had the general power to adjudge the defendant in contempt and to punish him therefor. It had jurisdiction of his person by the personal service upon him of the summons. The allegations of the complaint show a situation of the parties and an alleged cause of action which gave it jurisdiction of the subject-matter. (2 R. S., 146, § 50, et seq.) The matters set up in the answer to show want .of jurisdiction and other defences are not yet conclusive. They form the issues in the cause, and are the matters to be tried and proven before the action is defeated. It is to put the plaintiff in the possession of means with which to prepare for a trial of them that the statute (2 R. S., 148, § 58) gives to the court the power which it has exercised in her behalf. (North v. North, 1 Barb. Chy. Rep., 241; Purcell v. Purcell, 3 Edwards’ Chy. Rep., 194.) It was for the Special Term to say, on all the facts shown to it, whether she should be furnished by the defendant with means to enable her to try these issues. The order made by it to that end is not before us for review. We must, for the purposes of this appeal, presume that it was right in its terms and directions. (The People v. Spaulding, 2 Paige, 326; The People v. Sturtevant, supra.) It matters not that she has made an unsuccessful motion, for means to carry on another action seeking other relief in a court in another State. The order there denying her motion in that action is not an adjudication which bars an application here in this action. The Special Term having made the order and the defendant having on service thereof neglected to comply with it, he has been disobedient of the court and in contempt of it. The court had power to punish him therefor. (2 R. S., 534, § 1, sub.) This might be by fine or imprisonment, or both. (Id. and p. 538, §§ 20 et seq.) But it was not limited to this mode of enforcing its orders. Inasmuch as after the commencement of the action, he had gone out of the jurisdiction, it would not have availed to order him fined and committed. But it had control over its own proceedings and could refuse to the defendant the benefit of them, when asked as a favor, until he purged himself of his contempt. (Ellingwood v. Stevenson, 1 Sandf. Ch., 366; Johnson v. Pinney, 1 Paige, 646; Rogers v. Patterson, 4 Paige, 450; Evans v. Van Hale, Clarke, 17.) But it is to be observed that in these cases, it is stated that the rule that one in contempt will not be heard, applies only to matters of favor, and that though adjudged to be in contempt, the party will be heard on matters of strict right. And it is held that a party is entitled to be heard, if his object is to get rid of the order, or other proceedings, which placed him in contempt. (Morrison v. Morrison, 5 Hare, 590; 30 Eng. Ch. Rep., 589, note 2.) And see Chuck v. Cremer (Cooper’s Cases, Temp. Cott. Ch., 205), where are collected, in the notes, many cases upon this subject. The conclusion to be drawn from them is this: That a party in contempt, and until he is purged of it, will not be permitted to ask for the favor of the court, nor to take any aggressive proceedings against his adversary; but that it is his right to take measures to protect himself, and to make any motion designed to show that the order adjudging him in contempt was erroneous. He may move to discharge the order though in contempt for not obeying it. For as is said, in Odell v. Hart (1 Moll., 492), “if a man were disabled from applying to the court to set aside an order declaring him in contempt, it would lead to this: That one ordered to do an act by a given day, should do it first, and then come to set it right afterward.” And as is said in Barker v. Dawson (1 Cooper, supra), an extension of the rule so as to prevent a motion to set aside an irregular order, made subsequent to the contempt, would place the party in contempt too much at the mercy of his adversary. And we may add that he would be placed too much at the mercy of the court, if a Special Term can make an order that an act be done in a short space of time, and the act not being done, may declare the party in contempt for not doing it, and as punishment therefor may perpetually restrain him from appealing from the order directing the act. The party would be shut up to a round of orders by the same tribunal without means of escape. We should not expect so to find the law. We do not find it so. We have seen that the party may move to set aside or discharge the order; and he may also appeal from it. Stone v. Byrne (5 Brown’s Cases in Parliament, 209), arose in the Exchequer Court in Ireland. One Teates, who was not originally a party, was in the progress of the action declared in contempt and actually committed. An appeal was had by other parties from the decree made in the action, and by Teates, who was still in custody, from the order declaring him in contempt. His appeal was entertained in the appellate court, and he was discharged from the contempt complained of. It is true that it was not urged against the hearing of the appeal, that the party was in contempt and should not be heard. But the appeal was entertained in face of contest on other points, as was the case also in The People v. Sturtevant (supra). And if a party may move to set aside or discharge the order as erroneous, to rid himself of contempt, he may, it must follow, take any other course which the law allows to a party to establish that it is erroneous; and an appeal from it, and a review of it in an appellate court, is such other course. It -is to be observed however, that in the cases cited, the disability to be heard in court was not a punishment inflicted upon -the party in contempt, by the express terms of any order or decree adjudging Mm in contempt. Being in contempt, he came before the court on motion or otherwise, and was met by an objection from his adversary, that for that reason he could not be heard. In the case in hand, the disability to proceed on his appeal is a pumshment inflicted affirmatively and directly by order. But the Special Term got no right to inflict such punishment from the statute law. That provides for fine and imprisonment. If the Special Term had the ability to impose such punishment as it has, it found it in its inherent power as a court of eqmtable powers and jurisdiction. But as such, it could take no greater power than the settled practice of the court has established as belonging to it. And it will be seen from the cases cited, that the court has not exercised the power of preventing the party from moving to rid himself of the contempt adjudged by showing that the order was erroneously granted. It may be doubted whether the proper method of exercising this power of the court to secure obedience to its orders, is to impose in terms, and in advance of the asking the action of the court, a denial thereof. The practice seems to have been, when the party was in contempt to meet him with that fact, on his attempting to move in the action in any respect in which the court was wont to withhold its aid from a party thus placed. It follows that the Special Term had no power to stay the defendant in his proceedings by appeal, to show that the order which he did not obey was erroneous. £he orders of the courts below, so far as they direct a stay of the proceedings by appeal or otherwise of the appellant to rid himself of the contempt alleged, must be reversed. The appeal from so much of the order as directs the striking out of the answer, and the reference to take proof etc., must be dismissed, with costs to neither party. All concur. Ordered accordingly. It was not intended to positively pass upon the power of the court below to grant temporary alimony in this case, or in any case in which a marriage is denied and is not yet proven. All that is here held is, that the court below having passed upon the question and made an order in a case in which it had jurisdiction of the subject-matter and of the person, and made an order, it is contempt of court not to obey it as long as it is in force. The question of the power of the court below is more fully considered in Griffin v. Griffin, post 134—[F.