
    Angeline Haines v. Charles H. Haines.
    
      Chancery appeals: Contempt proceedings: Appealable final order. An order adjudging a defendant in a divorce suit guilty of contempt for non-payment of allowances, and imposing a fine, and in default ordering him to stand committed, is an appealable final order,
    
    
      Appeals: Appellate court: Practice. In all appeals the matter is heard in the appellate court as if it had not heen heard before, and the order made is such as should have been made below; but the orders of the inferior tribunal will not be disturbed unless it satisfactorily appears that they require correction.
    
      Divorce: Temporary alimony. The power to grant temporary alimony in a divorce case is recognized, but it is held it should be confined to what may he reasonably regarded as necessary in the particular case.
    
    
      Temporary alimony: Orders: Discretion: Contempt proceedings: Collateral inquwy. The order granting temporary alimony, being one resting in discretion, and not itself appealable, will not be reviewed or considered collaterally, on appeal from proceedings for contempt in refusing to comply with its requirements, at least unless it be a very plain case of abuse of discretion.
    
      Process for contempt: Temporally alimony: Allowances: Executions. The process of contempt to enforce civil remedies is one of extreme resort, which cannot be justified if there is any other adequate remedy; but it is allowable to compel obedience to an order requiring the payment of ^temporary alimony. The nature and purpose of allowances to carry on litigation will not permit of their being required to depend for enforcement on executions, and not being recoverable by execution, process of attachment will lie.
    
    
      Contempt proceedings: Payment of money: Crimmalfine. The statute (Comp. L. 1871, g 5709) providing expressly that when the court in contempt proceedings orders the payment of money to the id jured party this shall stand “ instead of a fine,” the imposition of a criminal fine, in addition to the requirement of payment to the party, is erroneous and unwarranted.
    
      Heard October 18.
    
    
      Decided October 24.
    
    Appeal in Chancery from Kalamazoo Circuit.
    
      Edwards & Sherwood, for complainant,
    argued that the appeal was without authority and should be dismissed. The principle is elementary, that courts of record have the inherent power to punish for contempt, over which they have exclusive control; and their conviction or acquittal therefor is conclusive, and no appeal will lie: State v. Tipton, 1 Blackf., 166; Ex parte Kearney, 7 Wheat., 38; Clark v. People, 1 Breese, 226; Bickley v. Com., 1 J. J. Marsh, 575; Martin’s Case, 5 Yerg., 456; 2 Bish. Cr. L., § 268; 3 Ala., 94; 32 Vt., 253; Watson v. Williams, 36 Miss., 331; Church v. Muscatine, 2 Clark (Ia.), 69; the sense in which this principle is to he understood is, that there is no appeal to retry the question of contempt; and an appeal may he had to correct an erroneous sentence, or to review questions of jurisdiction arising out of the determination ifcelf: 1 J. J. Marsh, 575; 15 B. Mon., 607; 27 Geo., 476; this principle is clearly stated in Romeyn v. Caplis, 17 Mich., 455; and Brewer v. Kidd, 23 Mich., 441, and Stellar v. Stellar, 25 Mich., 159, are appeals involving jurisdictional questions, upon which the decisions turned.
    The present case involves no question of want of complete jurisdiction over the subject matter and the person of defendant in the court below.
    
      The order of November 29, 1875, was for the payment of money for the temporary support and expenses *of suit of complainant, and on this appeal it is not open to review.
    The defense assumed is the want of means and property and consequent inability to pay, and that there was consequently no wrong in defendant’s refusal to pay. This defense must rest on the showing made below, upon which the order appealed from was based. We submit that it is clearly made to appear from that showing that defendant fraudulently sought to evade the order for payment by placing his property and means beyond the reach of the process of the court, and that he wrongfully refused payment of the sums ordered; and the counsel reviewed the facts at length.
    
      Arthur Brown, for defendant,
    argued that in the absence of any settlement of a case showing what was submitted to the court on the hearing below, the case must be heard on the interrogatories and answers thereto, which constitute the only proper record of the ease, and that affidavits on file “ or other proofs ” stand like testimony taken in open court and can only be considered on appeal when it has been embodied in a settled case: Wright v. Dudley, 8 Mich., 74; Comp. L., § 5707.
    
    No proceedings can be had for contempt for the mere nonpayment of money. It is not within the letter of the statute of contempts. Comp. B., p. 1656, § 1, specifies the cases in which parties may be punished by attachment as for con-tempts. Sub. S says that “parties,” etc., “for the non-payment of any sum of money ordered by such court to be paid in cases when by law execution cannot be awarded for the collection of such claims,” thus clearly providing by inference that if cm execution can be awarded, then the party cannot be punished for contempt.. And the statute providing for alimony pendente lite, provides explicitly that execution may be awarded to collect the same.— Comp. B., § Ifllfi; and compare § Jf/59. The legislature, in providing the *manner in which alimony may be collected, was careful not to include the punishment by contempt, but specifies almost every other method of collecting money: Gomp. JO., § In other states it has been held, on the best authority, that the proper way to collect temporary alimony is by execution: Morton v. Morton, 4 Cush., 518; Piatt v. Piatt, 9 Ohio, 37; Lansing v. Lansing, 4 Lansing 37.
    
      To ensure the violation of the order for alimony, complainant’s solicitors obtained an injunction at the time of commencing suit, restraining defendant from selling, mortgaging or conveying any of his property, real or personal. There is no shadow of pretense that defendant had a dollar in money outside of that property, or that he had any way to procure it except by sale of it, and yet to prevent his getting money to comply with the order, he is enjoined from selling. If he sell lie is guilty of contempt for violating the injunction, and if he don’t sell he is guilty of contempt for non-payment of money. Both the court below and the counsel were determined to have this defendant adjudged guilty of something, and such is the exact position in which they placed him in order to do it. The court below argued that it was defendant’s duty to get the injunction dissolved; but the defendant had every reason to suppose that the court would deny any application he could make, and certainly the dissolution of an injunction rested in the power of the court, and not in the party defendant. ' If the failure to have the injunction dissolved was an act of contempt, then it must be that the court itself is the party to be punished.
    The facts in this case show, that defendant did not have any money with which he could pay the amount ordered to be paid; and the counsel discussed the facts..
    The amount of alimony ordered in this case was an outrageous infringement upon the rights of defendant.
    At a fair valuation of all his property, at private sale, *it might by a bare possibility have brought about enough, over and above his then existing debts, to pay the amount ordered by the court to be paid to Edwards & Sherwood as a solicitor’s fee. Without any examination into the merits of the case, on a mere preliminary order, almost immediately after the commencement of suit, a circuit judge directs the defendant to give to the counsel on the other side what little property he is worth, and by his order places him in such a situation that the land which he holds under contract is also taken away from him. If a circuit judge has the power to strip a party of his hard earnings and give it to some attorney, who may be a crony of his, it is about time it was hedged around with some difficulties in the way of collection.
    It has been suggested in some cases that the court has power to award temporary alimony to defray expenses of suit only, and not to award alimony for temporary support. The language of the statute sustains that theory: Comp. X., § JflJiB. And the right to grant alimony is purely statutory: PerJcins v. PerJcins, 16 Mich., 162.
    
      
       An order allowing alimony is not appealable: Lapham v. Lapham, 40 Mich., 527; Cooper v. Mayhem, id., 528; Loss v. Moss, 47 id., 185, and will not be reviewed unless there has been a gross abuse of discretion: Moss v. Gh'ijfin; Rose v. Rose, 52 Mich. An order committing for contempt by reason of non-payment of alimony is final and appealable: In re Bissell, 40 Mich., 63; Ross v. Ross, 47 id., 185. But if an appeal is taken from such order, the court below still has jurisdiction to make further orders as to alimony becoming due subsequently: Ross v. Oh'iffn, 52 Mich,
    
    
      
       The court will not compel the payment of temporary alimony or counsel fees unless it appear by the bill or a petition that the wife has no separate property to enable her to support herself, and that the husband has property: Ross v. Ross, 47 Mich., 185. Alimony pending an appeal is not a matter of right where the decree is against the wife: Hoff v. Hoff, 48 Mich., 641.
    
    
      
       An order for temporary alimony is to be enforced by contempt proceedings. An execution is proper only after final decree in case of permanent alimony: Taylor v. Gladwin 40 Mich232, or of an allowance in support of children: North v. North. 39 id., 67. So under statute of 1877 (How. St., g 6247): Palmer v. Palmer, 45 Mich,, 150.
    
   Campbell, J.:

The circuit court of Kalamazoo county ordered defendant to make certain payments for expenses of litigation and for temporary support in favor of complainant, who had brought a suit against him for a divorce. The allowance was fifty dollars for solicitor’s fee, twenty dollars for securing attendance of witnesses, and twenty dollars a month temporary alimony. This order was made upon full hearing on the 29th of November, is^s.

On the 13th day of June, 1816, after an examination on interrogatories, and the hearing of proofs, defendant was adjudged guilty of contempt, and ordered to pay forthwith the arrears of two hundred and ten dollars and a fine of one hundred dollars, and in default to stand committed for *four months unless he should sooner pay the same. He appeals from that order.

It is first objected that an appeal will not lie. This has already been decided in several eases. It was held in People ex rel. Messler v. Simonson, 9 Mich. R., 492, that such an order was a final order and appealable. — See also People v. Jones, 33 Mich., 303.

Some controversy is also made as to the extent of the jurisdiction on appeal. In all appeals the matter is heard in the appellate court as if it had not been heard before, and the order made is such as should have been made below. But of course an appellate court will always render such respect to the views of the inferior tribunal as not to disturb its orders without being satisfied of their requiring correction.

Where the order which is alleged to have been violated was made without jurisdiction, and required what the court had no right to require as a matter of legal authority, of course it has no force, and no one is guilty of legal wrong in disobeying it. This was decided in People v. Simonson, 10 Mich. R., 335. But if, on the other hand, the. order disobeyed was a valid order, the question of punishment for disobedience will depend on whether the conduct of the party is intentionally and willfully contumacious, or whether his disobedience is qualified by circumstances which should fairly exempt him from serious blame.

It is claimed in the present case that the order for alimony was invalid, and if valid, that it should have been enforced by a different remedy. It is also claimed that the defendant had not the means to make the payments, and should be excused on that account as not a willful offender.

The right to grant temporary alimony has been recognized without question in all divorce suits where the circumstances required it. — Story v. Story, Walk. Ch. R., 421; Goldsmith v. Goldsmith, 6 Mich. R., 285. The statute makes express provision for requiring the husband to “ pay *any sums necessary to enable the wife to carry on or defend the suit during its pendency.”— G. L., § Whether this would include advances for support, or must be strictly confined to legal expenses, is not very important, as the allowances have always been upheld as under at least as strong an equity and as necessary to prevent a failure of justice.

The allowance of such temporary support and expenses should be confined to what may be reasonably regarded as necessary in each case. But how far the allowance can be reviewed or criticised in a proceeding for contempt, unless so manifestly oppressive as to require consideration as an abuse, is a question on which we need not now spend time. Where power is made to rest in discretion, and the order is not itself appealable, it is safe to say that if it can be considered at all collaterally it must be a very plain abuse that will permit it to be considered.

There is nothing in the present case to indicate that the court acted on anything but legal evidence in fixing the allowance. The conclusions were such as were fairly within the range of the proof, and do not present any case of want of power or abuse of power.

It is claimed, however, that the remedy for non-payment should have been by execution. We have no difficulty in holding that the process of contempt to enforce civil remedies is one of those extreme resorts which cannot be justified if there is any other adequate remedy. The statutes have done away with the barbarous rules which made process of contempt the usual remedy for the enforcement of equitable rights. Payment of money can only be enforced by attachment “where by law execution cannot be awarded for the collection of such sum.’’— G. L., § 5689, Sub. 8.

It is provided by § 5099 that “the court may enforce performance of any decree, or obedience thereto, by execution.”

The section under which advances may be ordered for legal expenses contains in its conclusion the following *clause, which the defendant insists covers this case; “And it may decree costs against either party, and award execution for the same, or it may direct such costs to be paid out of any property sequestered, or in the power of the court, or in the hands of a receiver.” — § 17.Jf>.

The issue of execution is here in terms confined to costs, and does not cover the other allowances. The costs are such costs as are decreed. The term decree is not applicable to the interlocutory orders made for the furtherance of suits, but belongs to such adjudications as settle some right or liability pertaining to the substance of the controversy. It is probable that provision for costs originated in the fact that divorce px-oeeedings are statutory, and not within the original cognizance of courts of equity. This provision is found in the divoi-ce law of 1827 (Act of April 12, 1827), and has been continued in all the statutes on that subject, while the enfoi’cement of equitable decrees by execution is comparatively recent. The nature and purpose of allowances to carry' on litigation would not allow them to depend for enforcement on executions. Unless they can be enforced in some other way, they may be practically defeated. They do not come within the language of the provision covering costs, and are not within its equity. If not recoverable by execution, then process of attachment lies.

The only remaining question is, whether the record shows defendant to have acted contumaciously. We shall not follow the discussion concerning what papers are properly before us. We find no difficulty in disposing of this matter on the acknowledged documents.

There is no dispute about the defendant’s failure to comply with the order. But he claims that he had not the means of doing so. It is evident that when the original order was made he had considerable property, and that when the suit was commenced he had still more. An injunction was issued, and he insists that this tied his hands so that if he desired to raise money he could not do so. ^This pretext amounts to nothing. The evidence indicates very plainly that it is fraud, and not poverty, which has prevented the payment, and the court below was well warranted in considering the defense to the motion as evasive and without truth. We are of the same opinion.

The order contains one provision which is not authorized by law. The statute is express that when the court in contempt proceedings orders the payment of money to the injured party, that shall stand “instead of a fine.” — § 5709. Here the order required the payment of two hundred and ten dollars to complainant, and a criminal fine of one hundred dollars besides. The separate fine was illegal, and so much of the order as provided for it must be reversed and vacated, and the remainder affirmed, with costs of this court, in favor of complainant. The reversal does not reach any of complainant’s rights, as the fine was imposed as a public penalty. The appeal was against the whole decree, and this defect was not pointed out on the argument as a separate grievance. It is not one over which complainant had any control.

The other justices concurred.  