
    WALKER v. WALKER.
    N. Y. Court of Appeals;
    
    October, 1880.
    Contempt.—Striking out Pleading.—Divorce.
    
      A court of equity lias power to strike out the pleading of a party in contempt, and allow the other party to proceed as if such pleading had not befen put in.
    Hence, in divorce (for cruelty), if defendant fails to pay alimony, &c., required, plaintiff may take an order striking out the answer, and directing the cause to proceed as if defendant had made default in • pleading.
    
    Appeal from an order of the general term of the supreme court in the first judicial department, affirm■ing two orders of the special term made at chambers, which struck out the answer of the defendant, and directed a reference.
    This action was brought by Eliza Jane Walker against her husband, Joseph Walker, for a limited divorce, on the ground of cruelty.
    The defendant put in an answer which contained a general denial, and also set up the misconduct and adultery of the plaintiff.
    Plaintiff obtained an order requiring the defendant to pay alimony and counsel fee. He sribsequently left the State, and a precept for the collection of the money having been issued to the sheriff, was returned unsatisfied. The plaintiff thereupon obtained an order ' requiring defendant to show cause why he should not pay the amount due, or have his answer stricken out. The order contained a provision that service of it on the defendant’s attorney should be sufficient. On the return of the order to show cause, an order was made directing the payment of the sums mentioned within five days after service of the order on the defendant’s attorney, or that in default thereof defendant’s answer should be stricken out, and the cause proceed as if no answer had been put in.
    The order was not complied with, and the plaintiff made application, on an order to show cause, for a reference to take proof of the facts alleged in the complaint. The order contained a provision that service of it on the defendant’s attorney should be sufficient. The result was an order striking out the answer absolutely, and granting the reference asked for.
    
      The Supreme Court, at general term, on defendant’s appeal from these orders, affirmed them, holding that the court had power to strike out the answer, citing Farnham v. Farnham (9 How. Pr. 231). Brinkley v. 
      Brinkley (47 AT. Y. 40), Rice v. Ehele (55 Id. 519), and that the service on the attorney was proper, citing, on this point, Pitt v. Davison (3 Abb. Pr. AT. 8. 398 ; S. Cv 37 AT. Y. 235).
    The defendants then appealed to this court.
    
      S. Hand and D. T. Robertson, for defendant, appellant.
    Power to grant divorces a mensa et Choro, exists wholly by virtue of statute law (Burtis v. Burtis, Hopk. Ch. 557; Perry v. Perry, 2 Paige, 506; Griffin v. Griffin, 47 N. Y. 138). In cases of limited divorce, the statute provides that “ the defendant may prove, in his justification, the ill-conduct of the complainant.” (3 R. S. 6 ed. 158, § 66 ; Code Civ. Pro. § 1,765). To give the defendant a right to be heard in opposition to ■the charges in the complaint, an answer is necessary (Code, § 500; McKyring v. Bull, 16 N. Y. 309). The court below had no power to strike out the verified answer of the defendant, and to award an order of reference as for want of an answer in the cause (Grover, J., in Wayland v. Tyson, 45 N. Y. 282, 285; Folger, J., in Thompson v. Erie R. R. Co., 45 Id. 471, 478; Farmers’ Nat. Bank v. Leland, 50 Id. 673; Allis v. Leonard, 46 Id. 688; Roby v. Hallock, 55 How. Pr. 412). The power only exists in actions for discovery, or where the answer is sham or frivolous (Code, § 808; Rice v. Eheli, 55 N. Y. 518; rev’g 65 Barb. 185; Code, § 538; Strong v. Sproul, 53 N. Y. 497; Wayland v. Tyson, 45 Id. 282, 285). There was no personal demand at any time made upon the defendant for the amount awarded as alimony and counsel fee. None of the cases relied on in the court below go to the extent of holding that the court has the power ,to strike out the verified answer of a defendant, which contains a general denial (Farnham v. Farnham, 9 How. Pr. 231; Brinkley v. Brinkley, 47 N. Y. 40; Rice v. 
      Ehele, 55 Id. 519; rev’g 65 Barb. 185). There was no evidence that it was the intention of the defendant to abandon his residence in the State of New York,
    
      John B. Perry, for plaintiff, respondent.
    The merits of the order requiring the defendant to pay alimony are not reviewable (People v. Bergen, 53 N. Y. 404; Kennedy v. Kennedy, 73 Id. 369). He was not entitled to plead or to prove the plaintiff’s adultery (Henry v. Henry, 3 Robt. 614; Diddle v. Diddle, 3 Abb. Pr. 167; Terhune v. Terhune, 40 How. Pr. 258; Smith v. Smith, 4 Paige, 92; Johnson v. Johnson, 6 Johns. Ch. 163; Reynolds v. Reynolds, 3 Keyes, 368). He was not entitled to a jury trial (Smith v. Smith, 4 Paige, 92; Smith v. Caril, 5 Johns. Ch. 118; Johnson v. Johnson, 6 Johns. Ch. 163; Forrest v. Forrest, 25 N. Y. 510; Sheppard v. Steele, 43 Id. 52; Thompson v. Erie R. R. Co., 45 Id. 473; Code, §§ 968, 970). Plaintiff’s conduct was immaterial (2 Bishop on M. & D. 21, 22, 23). Defendant had still a right to cross-examination (Thompson v. Erie R. R. Co., 45 N. Y. 476), and perhaps to give proof in mitigation or justification (McIntosh v. McIntosh, 12 How. Pr. 289; Jamieson v. Jamieson, 53 Id. 112; Code, § 1,765). Defendant has waived his rights to question the practice pursued (Ubsdell v. Root, 3 Abb. Pr. 142; Porter v. Parmly, 38 Super. Ct. [J. & S] 490; Renouil v. Parris, 1 Code R. 125; Comb v. Wykoff, Col. & Cai. 202). The remedy pursued was the only one, and the power exercised was inherent and statutory (D’Aquilar v. D’Aquilar, Hagg. Ecc. 773; 2 Bishop on M. & D. §§ 488, 387, note; 1 Id. §§ 70, 78, 79, 86; 2 Id. §§ 297, 323, 324; Chase v. Ingalls, 97 Mass. 524; Shepard v. Steele, 43 N. Y. 52; affi’g 3 Lans. 417; Thompson v. Erie R. R. Co., 45 N. Y. 483; Farnham v. Farnham, 9 How. Pr. 231; Barker v. Barker, 15 Id. 568; Brinkley v. Brinkley, 47 N. Y. 41; Rice v. Ehle, 55 Id. 513; rev’g 65 Barb. 185; Willis v. Talmage, 10 Paige, 443; Elingwood v. Stevenson, 4 Sandf. Ch. 366; Ford v. Ford, 10 Abb. Pr. N. S. 74).
    
      
       See Allen v. Allen, p. 175 of this volume, and cases there referred to; McClung v. McClung, 40 Mich. 493.
    
    
      
      
         Rev’g 65 Barb. 185.
    
   Folger, J.

The defendant, having refused or neglected to obey an important order of tire court, was in contempt, and liable to punishment by reason thereof. The punishment inflicted by the court was by an order in the cause, to strike out the answer that had been put in by him, and to direct a reference to take proof of the matters stated in the order; the reference to proceed as if there had been no answer to put in.

It is claimed that the court had no power to make that order; that every defendant has a vested right to make-a defense to any action or suit or legal proceeding .begun against him, and that he cannot be deprived of it.

It is conceded by the defendant that the supreme court, on its equity side, has all the power and authority that formerly existed in chancery in England, and was continually exercised by it. “ The rule there must be the rule here,” says Ch. Kent, “for I take this occasion to observe that I consider myself bound by those principles which were known and established as law in the courts of equity in England at the time of the institution of this court” (Manning v. Manning, 1 Johns. Ch. 527-529). It is not to be denied that a court of equity may refuse to a defendant in cohtempt the benefit of proceedings in it, when asked by him as a favor, until he has purged himself of his contempt (see Brinkley v. Brinkley, 47 N. Y. 40-49, and cases there cited). But .the rule has been held broader than that, and enforced with much vigor. Ch. Baron Gilbert lays it down in his Forum Bomanorum, p. 33, that “ if the defendant appeared before the secundum decretum, he was liable to a mulct, for he could not be heard in the cause till he had cleared his contempt . . .” It is suggested in Cooper's Cases (temp. Colt, p. 209), that this is merely a statement of the practice according to the canon law. But the chief baron says at another place (p. 71), that “ the answer will not be received without clearing his contempts ; ” and at another (p. 211), “So it is where a man hath a bill depending in court, and falls under the displeasure of the court, and is ordered to stand committed. Here, when his cause is called, if the other side insist he hath not cleared his contempt, nor actually surrendered his body to the warden of the Fleet, he must do both these things before his cause can be proceeded in . . .” It is stated by Lord Eldoe" that it is a general rule; that a party who has not cleared his contempt cannot be heard (Vowles v. Young, 9 Ves. Jr. 173; Anonymous, 15 Id. 174). The same is said with the addition of the words “in the principal case,” in 2 Com. Dig. Ch. “Process” D S, citing Practical Register in Ch., 217 (see also Heyn v. Heyn, Jacobs, 49; Clark v. Dew, 1 Russ & Myl. 103). The rule in the chancery of Ireland is stated thus: A party in contempt will not be allowed to oppose the relief sought by the plaintiff by contradicting the allegations of the bill or bringing forward any defense, or alleging new facts (Anon. v. Lord Gort, 1 Hogan, 77; Valle v. O’Reilly, Id. 199). And the rule, as thus stated, is cited and approved in Mussina v. Bartlett (8 Porter [17 Ala.] 277); see also Rutherford v. Metcalf (3 Hayw. [Tenn.] 58, 61); and in Saylor v. Mockbie (1 Withrow [9 Iowa], 209, 212) it is held that until the defendant had purged himself of contempt, the court might well refuse to receive his answer to -the complainant’s bill, or to consider the matters set up in it by way of excuse for refusal to obey the order. The reporter (Coop. temp. Colt, at p. 211) cites in a note the case of Anon. y. Lord Gort, supra, and says • of it: “The accuracy of some of these dicta may be doubted.” He does not state as to which of them he queries. Many cases are collected in the note just above mentioned. Some of them show that the rule has not been vigorously applied in later times (see King v. Bryant, 3 Myl. & Cr. 191, especially); but it does not appear that it has been abolished or abandoned entirely. It seems, too, that the authors of the Revised Statutes thought that this power resided in the English court of chancery. In preparing the sections relative to the production and discovery .of books and papers (2 R. S. 199, § 21 et seq.) they provided (§ 26) that in case of a party neglecting or refusing to obey an order, the court might strike out his plea and debar him from a defense ; and they sought thus to assimilate the practice to that of the court of chancery (see Rev. Note, Edm. Stat. 411). The legislature gave its sanction to the proposed practice by passing into law the sections reported by the revisers.

It is well to say here that Rice v. Ehle (55 N. Y. 518) does not condemn this. That case holds that the pleading may not be stricken out, save on notice to the party (p. 523), and that the exercise of this power was legitimate was recognized by Marcy, J., in Birdsall v. Pixley (4 Wend. 196). The power seems to have been exerted or recognized by the supreme court in several instances, without question made by appeal (Farnham v. Farnham, 9 How. Pr. 231; Barker v. Barker, 15 Id. 568; Ford v. Ford, 41 Id. 169. )

We are brought to the conclusion that there has long been exerted by the court of chancery, in England, the power to refuse to hear the défendant when he was in contempt of the court by disobeying its orders, and that that power was in the courts of chancery of this country.

We do not think that the cases of Wayland v. Tyson (45 N. Y. 282), and Thompson v. Erie Railway (Id. 471), and others of like result, are in the way of this conclusion. They were not cases of contempt, nor were they equity cases. Besides, there the answer was stricken out, with no loophole left for relief to the defendant. ■

It is always in the power of the defendant, in a case like that in hand, to apply to the court and show that the order was irregularly made, or for leave to purge himself of that contempt and be let in again to make his defense (Brinkley v. Brinley, supra).

The order should be affirmed.

All the judges concurred.

Defendant then moved, at special term and chambers in the court below, to set the judgment aside, and for leave to answer and defend.

Donohue, J.

Upon a long and patient investigation by an able and competent referee, after a full and exhaustive hearing, wherein a great mass of evidence was taken, the defendant was found to be concealing his property to defraud- the plaintiff of her rights, and in defiance of the court. In this finding all the courts before whom the matters'involved have come for review, directly or indirectly, fully concur; and on now thoroughly examining the facts, I fail to find data for any other conclusion. In defiance of the order of the learned justice who confirmed the report [Judge Lawrence], the defendant, keeping his person out of the reach of the process of the court, has resisted execution of the order on that judgment, and the only power left in the court was to strike out his answer. This power he has tested by an appeal to the court of appeals. Still keeping his person beyond the jurisdiction, he now asks what seems to me simply to be allowed to extend this contempt by being •allowed to come in and answer. The plaintiff has some rights which the court is bound to respect, and to give this privilege under the circumstances would, it seems to me, be simply denying her justice.

Motion denied. 
      
       Another instance is the power to strike out the answer of a party refusing to testify as a witness. Richards v. Judd, 15 Abb. Pr. N. S. 184.
     
      
       Rev’g 65 Barb. 185.
     
      
      
         S. C., 10 Abb. Pr. N. S. 74.
     