
    COURT OF APPEALS.
    Eliza Jane Walker, respondent, agt. Joseph Walker, appellant.
    
      Under what circumstances cm answer in a suit for limited divorce may he struck out.
    
    In a suit for limited divorce on the ground of cruelty, where the defendant was ordered to pay alimony, upon which he left the state, and upon the return of precept unsatisfied an order nisi was made that he pay within five days or that his answer be struck out:
    
      Held, that, on proof of default, the court had power to make an order striking out the defendant’s answer, which contained a general denial, and to direct a reference to take proof as if no answer had been served.
    
      Decided October, 1880.
    This action was for a limited divorce on the ground of cruelty. The defendant was ordered to pay alimony, upon which he left the state. Upon the return of precept unsatisfied an order nisi was' made that he pay within five days or that his answer be struck out. On proof of default an order absolute was made striking out his answer, which contained a general denial, and directing a reference to take proof as if no answer had been served. The defendant appealed from these orders to the general term, where they were affirmed. He then appealed to the court of appeals.
    
      8. Hand and D. T. Robertson, for appellant.
    
      John B. Perry, for respondent.
   Folger, J.

The defendant, having refused or neglected to obey an important order of the 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 proceedings 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 continuously exercised by it. “ The rule there must be the rale 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 agt. Manning, 1 Johns. Ch., 527-529). It is not to be denied that a court of equity may 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 (See Brinkley agt. Brinkley, 47 N. Y., 40-49, and cases there cited). But the rule has been held broader than that and enforced with much vigor. Oh. baron Gilbert lays it down in his Forum Romanorum (page 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 (page 71), that “ the answer will not be received without clearing his contempts; ” and at another (page 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 Eldon that it is a general rule that a party who has not cleared his contempt cannot be heard (Vowles agt. 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 Comyn’s Digest (Chy. Process, D.), 8, citing Practical Register in Chancery, 217 (See, also, Heyn agt. Heyn, Jacobs, 49; Clark agt. 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. agt. Lord Gort, 1 Hogan, 77; Valle agt. O’Reilly, id., 199). And the rule, as thus stated, is cited and approved in Mussina agt. Bartlett (8 Porter, 17 Ala., 277); see, also, Rutherford agt. Metcalf (3 Hayw. [Tenn.], 58, 61); and in Saylor agt. 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, tempt., Colt, at page 211) cites in a note the case of agt. 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 agt. 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 Eevised 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., p. 199, see. 21, et seq.) they provided (sec. 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, 5 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 agt. 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 Mabcy, J., in Birdsall agt. 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 agt. Farnham, 9 How. Pr., 231; Barker agt. Barker, 15 id., 568; Ford agt. 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 defendant 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 agt. Tyson (45 N. Y., 282) and Thompson agt. 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 the contempt and be let in again to make his defense (Brinkley agt. Brinkley, supra).

The order should be affirmed.

All concur.  