Peltier v. Peltier , 1 Harr. Ch. 19 ( 1839 )

The Chancellor.

These are cross motions, and must necessarily both be considered at the same time.

When a defendant is in contempt, he cannot move to set aside proceedings; but when there is merely a failure on his part to comply with the requisitions of an interlocutory order, he may move to discharge the order for irregularity. (Hill vs. Bissell, Mose. R., 259.)

Here no contempt is fixed, and the defendant moves to set aside the order at the earliest opportunity. Orders of this kind are usually enforced by execution, and a mere failure to comply with the requisitions of such an order, is not such a contempt as will preclude the party from moving to discharge the order and set aside the proceedings for irregularity.

The proceedings in this case seem to have been irregular throughout. The bill was filed by a feme covert without pro chein ami, and was, therefore, improperly before the court. (Wood vs. Wood, 2 Paige R., 454; same case on appeal, 8 Wend., 357; Mitford, 153; Cooper, 163.)

The injunction and ne-exeat were issued May 31, 1836, returnable on the first Monday of June following, and were served June 6, 1836. The subpoena was not issued until the second day of July, 1836. This was clearly irregular. (Parker vs. Williams, 4 Paige R., 439; Attorney General vs. Nichol, 16 Ves., 338.)

The next question that arises, is, as to the jurisdiction of the court.

The bill in this case is filed, not for a divorce, but for alimony merely.

It appears from the authorities cited by the counsel for the complainant, that the courts of South Carolina have entertained bills of this kind; but they have usually been to carry into effect some marriage contract, or where a trust property was involved. I can find no other case where the jurisdiction has been sustained when the question has been raised. In the case of Hewitt vs. Hewitt, 1 Bland R., 101, the jurisdiction was not questioned, the facts were admitted, and the whole matter was submitted to the court. The cases referred to in the note to that case, are too indefinite to entitle them to any weight as .authority.

The whole current of authorities goes to show that courts of chancery have never entertained jurisdiction in cases of this kind, except in aid of some other court, or to carry into effect a marriage contract, or in the execution of a trust. (Peame vs. Lisle, Ambler R., 75; Perry vs. Perry, 2 Paige, 501.)

In England, when the court of chancery succeeded to the jurisdiction of the spiritual courts during the usurpation, it entertained suits of this kind, but not since the restoration. {See Head vs. Head, 3 Atk., 551; Watkyns vs. Watkyns, 2 Atk., 98; Fonb. Eq., 98, note n.)

In the case of Codd vs. Codd, 2 J. C. R., 141, the bill prayed for a writ of swpplicavit to protect the person of the petitioner, and her property and children from insult and injury, pending the suit, and chancellor Kent refused the writ, saying, “Why should not the party apply to a justice of the peace to bind the other to good behavior'?”

The cases cited in Desaussurd s equity reports of South Carolina, seem to be a departure from principle, and cannot, therefore, be regarded as authority in this case. If it is intended that courts of chancery should take jurisdiction of this class of cases, that jurisdiction must be given by law. I am satisfied that, exclusive of any statutory provision upon the subject, this court has no jurisdiction to entertain proceedings of this kind.

The orders must be discharged and the bill dismissed.