Davis v. Davis ( 1895 )

PARKER, J.

The special term denied plaintiff’s motion to punish the defendant as and for a contempt of court, because of his refusal to pay alimony awarded by an order of the court, on the ground that such order had not been served upon him within this state. The suit was for a divorce, and was commenced by personal service of the summons and complaint and order of arrest on defendant, who was held to bail in the sum of $1,000. Subsequently he appeared and answered, after which he departed from this state, and has since continued to reside in the state of Massachusetts. The question is whether the court, having acquired jurisdiction of the defendant in this action, is nevertheless powerless to proceed against bim for his alleged contempt in violating an order of the court, because by absenting himself he has rendered it impossible to serve the order upon him within this state. That he had knowledge of the existence of the order of the court requiring him to pay alimony is clearly established. It was personally served upon him in the state where he is at present residing, after which he made payment of the sum awarded to the plaintiff for costs, and also of a weekly allowance for alimony for a period of about 11 months, when he refused to make further payment. While the general rule is that the court will not punish a party for a contempt of court in refusing to obey its order until after the order has been personally served upon him, the power of the court to do so is established, provided it shall be made to appear that the party had knowledge of the making and the terms of the order disobeyed. People v. Rice, 80 Hun, 441, 30 N. Y. Supp. 457, affirmed 145 N. Y. —, 39 N. E. 88. In that case an order was made that a mandamus issue, but none was in fact issued, nor was the order ever served upon the parties proceeded against as for a contempt for a failure to obey it; but, it appearing that they had knowledge of the order, it was held that they could nevertheless be punished for contempt because of their refusal to obey it. The general term in the prevailing opinion, after discussing a number of cases, said:

“It is true that these cases I have referred to are all cases of violations of injunctions, but I can see no difference in principle between the violation of an injunction, or of an order for an injunction, and the violation of an order for a writ of mandamus. The principle is the same. It is the order of the court that has been disobeyed, and it has been brought equally into contempt, whether that order be for an injunction, mandamus, writ of prohibition, or any other writ or order which the court has power to grant or issue.”

As this case established the authority of the court to proceed against a party as and for contempt, who, while not legally served with a copy of the order, proceeds in violation of it with full knowledge of its existence; and the court having denied this motion, solely on the ground of want of power,—it follows that the order must be reversed. In Fairchild v. Fairchild (N. J. Ch.) 13 Atl. 599, the court reached a like conclusion, and we deem it not out of place to extract from the very satisfactory opinion of Vice Chancellor Bird the following:

“The order issued requiring the defendant to show cause why he should not be attached as for contempt in not paying the alimony and counsel fee which he had been directed to pay by the former order, which had been served on the solicitor of the defendant, but not on the defendant personally because of his absence from the state, the question is whether, under the rules and practices of the court, it can proceed in the matter or not. While the practice is to take no steps in such cases without a personal service, when that can be had, yet, if the defendant absents himself and renders such service impossible, the court will not be balked in its proceedings, and prevented from making a final order or decree, in case service be made upon the solicitor of the defendant, who has appeared in the case and represented him, or, in case there be no solicitor, the order or notice be left with the clerk of the court Such has been the established practice, I infer, for a long period of time. Rider v. Kidder and De Manneville v. De Manneville, 12 Ves. 202, 203. While in such case the court is solicitous in protecting every right of the defendant, and also to avoid the commission of any wrong against him, yet, when the defendant puts it beyond the power of the court to make further inquiry, the end of such solicitude has been answered, and every principle which either equity or justice demands satisfied.”

The order should be reversed, with $10 costs and printing disbursements. AH concur.