Bennett v. Bennett

1905 OK 95, 83 P. 550, 16 Okla. 164, 1905 Okla. LEXIS 114

• Court: Supreme Court of Oklahoma
• Decided: September 7, 1905
• Status: Published

Opinion

Opinion of the court by

Gillette, J.:

It is manifest from the brief of plaintiff in error filed in this case that but a single question is raised by this appeal calling for a review by this court, and that is: Is it within the province and power of the district courts of the Territory in a divorce case where defendant has been personally served with summons and fails to appear or answer for nearly one year, and where he has also been served with an order for the payment of temporary alimony and fails and refuses to obey the order, and when the case is called for trial then and for the first time appears and asks leave to answer, to impose any terms or conditions to the granting of such leave?

The answer to this question must inevitably determine this case.

If the court must, under such circumstances receive the answer without terms or conditions of any kind or nature attached to the granting of such leave, then there was error in the trial court, and the cause must be remanded for a new 'trial. On the other hand if, under such circumstances, the court may in its discretion impose any terms or conditions to the granting of such leave, and the filing of such answer, then there was no error and, unless there was an abuse of discretion, the judgment must be affirmed.

The very fact of asking leave of the court to answer, seems to the writer of this opinion to furnish the response to this inquiry. If the court could not impose terms, then the party has an absolute right to place his answer on the files of the court without any application to the court, and whether the court was willing or unwilling, and the request for leave to file the same was a mere formality, without significance, and tending rather to ridicule the court than tc honor or respect its authority.

The ease has been elaborately argued by counsel in their briefs, and we have therefore devoted to it more than ordinary attention, and have very carefully examined the cases cited and relied upon by the plaintiff in error.

As a basis for his argument, it is first contended that the plaintiff in error had never been legally convicted of any contempt of court.

It must be remembered that the petition was filed on the 21st day of May, 1903, and that on the same day a notice of the application for alimony pendente lité was served personally on the plaintiff in error, notifying him that the application would be heard before the judge of the court at chambers on the 23rd instant. The record shows that tlie -^application was presented, and the order for temporary alimony made, by the judge at chambers on the 23rd of May, 1903; also that the first appearance, and so far as the transcript shows, the only attention ever given by the plaintiff in error to said cause, was made by Ms counsel on the 6th day of April, 1904, nearly eleven months after the filing of the suit, during most of which time plaintiff in error had been absent from this Territory, though personally served with an alias summons on the 17th of February, 1904. The appearance, as shown by the transcript was a special appearance only for the purpose of challenging the jurisdiction of the court, and on the motion being overruled, “the defendant asked leave to file his answer herein.” That defendant was in contempt of the order of the court for the payment of alimony, is neither denied or questioned; in other words, that he had been notified of the application, and that the order had been made by the court on the 23rd of April, 1903, in pursuance of the notice and motion, and that the order had been at once served upon him, and that he had never complied or attempted to comply with the same, and had offered no excuse or explanation for not eomptying, are all undisputed and unquestioned facts.

With this state of facts it is now gravely argued that because defendant A. W. Bennett had not been attached and brought before the court, formally arraigned and adjudged guilty of contempt, therefore the court could not impose any terms or conditions to the leave granting him permission to answer the petition several months after his time for answering had elapsed. It must also be noticed that this request was made without the slightest attempt to explain or excuse his laches, and also, what is quite as important, without disclosing the nature or character of the answer which he desired to make.

That the mercy of the court had so long permitted the defendant to go unpunished for his contempt we do not think should now be construed as' establishing his innocence or entitling him to any favor at the hand of the court on that account. The record reads: “And now the defendant asks leave to file his answer herein, and it is by the court ordered that the said request be granted upon the condition that said ■defendant comply with the former order of the court requiring said defendant to pay temporary alimony and attorneys fees within five days from this date,” which was .-afterwards extended to April 13.

This is the record complained of, and as to which plaintiff in error says: “Had the plaintiff in error, however, been ■in contempt of court a denial to him of any substantive right was error,” and from thence proceeds to argue that it was not within the province or power of the court to refuse the 'leave to answer thus requested, or to attach any conditions ■to the granting of such request. Counsel then proceed to •cite and quote at considerable length from the case of Hovey v. Elliott, 167 U. S. 409. We have examined that case with •care, and because of the controling authority of that tribunal ■over this court, we feel called upon to explain at some length why we think the holding in that case is not controling in the case at bar. That was an action in equity growing oui •of the sale of some bonds, the object of the suit being to compel the defendants to account for the bonds or their value, upon the theory that defendants had acquired them with actual notice of pending litigation concerning them, and were bound by the result of the judgment rendered in the other action. This action had been put at issue by filing an answer, averring fraud and wrong doing on the part of the plaintiffs in that suit, the answer alleging facts which, if found to be true, would have defeated a recovery by the complainants. After replication, testimony was taken at várious times during the years 1875 and 1876. In June 1877 the complainants obtained an order from the supreme court of the District of Columbia requiring the defendants to pay over to the registry of the court the sum of $42,397.50, which had been paid to defendants by the receiver. This order was disobeyed, and thereupon the complainants in September, 1877, moved the defendants to show cause why they and each of. them should not be punished for disobedience of the order as for a contempt. On December 8, 1877, the supreme court of the District of Columbia made a decree that “the rule upon the defendants to show cause why they should not be decreed to be in and punished as for a contempt of court, etc., be made absolute, and that the said McDonald & White be taken and deemed to be in contempt of the aforesaid, order.” The decree then proceeds: “Unless McDonald & White, within six days from the entry of this order, and a service of the copy thereof upon, their solicitors, shall in all respects comply with the said order of June 19, 1877, and pay into the said registry of this court the sum of $49,297.50, the answer filed by them in the cause shall be stricken out, and that this cause proceed as if no answer had been interposed.”

The defendants not having complied with the order the answer of the defendants was stricken out and removed from the files of the court, and thereafter the cause was proceeded with as if no answer had been filed in the case. The bill was thereupon taken as confessed and decree rendered against defendants, and thereafter came to the supreme court of the United States by writ of error. Upon this state of facts the supreme court in passing upon the case uses this language:

“In the view we take of the case, even conceding that the statute does not limit their authority, and hence that the courts of the District of Columbia are vested with those general powers to punish for contempt which have been usually exercised by courts of equity without express statutory grant, a more fundamental question yet remains to be determined, that is, whether a court possessing plenary powers to punished for contempt, unlimited by statute, has the right to summon a defendant to answer, and then after obtaining jurisdiction by the summons refuse to allow the party summoned to answer, to strike his answer from the files, suppress the testimony in his favor and condemn him without consideration thereof and without a hearing, on the theory that he has been guilty of a contempt of court. The mere statement of this proposition would seem, in reason and conscience, to render imperative a negative answer. The fundamental conception of a court of justice is condemnation only after hearing. To saj^ that courts have inherent power to deny all right to defend an action and to render decrees without am*- hearing whatever is, in the very nature of things, to convert the court exercising such an authority into an instrument of wrong and oppression, and hence to strip it of that attribute of justice upon which the exercise of judicial power necessarily depends.”

To much the same effect is the case of McVeigh v. United States, 11 Wall, 259 wherein the court says:

“In our judgment the district court committed a serious error in ordering the claim and answer of the respondent to be stricken from the files. As we are unanimous in this conclusion our opinion will be confined to that subject. The order in effect denied the respondent a hearing. It is alleged that he was in the position of an alien enemy, and hence could have no locus standi in that forum. The lia- bilitv and the right are inseparable. A different result would be a blot upon our jurisprudence and civilization. We cannot hesitate or doubt on the subject. It would be contrary to the first principles of the social compact and of the right of administration of justice.”

Referring to the above case in Windsor v. McVeigh, 93 U. S. 274, speaking through Mr. Justice Field, the court-said :

“The principal stated in this terse language is at the foundation of all well ordered systems of jurisprudence. Wherever one is assailed in his person or property, there he may defend, for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations. A sentence of a court pronounced against a party without hearing him, or giving bim an opportunity to be heard, is not a judicial determination of his rights and is not entitled to respect in any other tribunal.”

This case of Windsor v. McVeigh was an action of ejectment for a tract of land situated in the city of Alexandria, Yirginia. Under the act of Congress of June 17, 1862; “To suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes,” the property had been seized by the marshal of the district, and a libel thereafter filed by direction of the attorney general, setting forth “that the owner of the property had, since tbe passage of the act, held an office of honor and trust under the government of the so-called Confederate ¡States, and had given aid and comfort to the rebellion.” Upon this libel the district judge ordered process of monition to issue as prayed, and that notice of the same be given by publication in a newspaper. Publication was made as directed, and the owner of the property appeared by counsel, and filed a claim to the property, and an answer to the libel. Subsequent]the district attorney moved that the claim and answer, and the appearance of the respondent by counsel, be stricken from the files, on the ground that it appeared from his answer that he was at the time of filing the same “a resident within the city of Richmond, within the Confederate lines, and a rebel." This motion was granted, and the claim and answer ordered to be stricken from the files, and the court thereupon immediately entered a decree condemning the property as forfeited to the United States. This was the state of facts upon which the court was passing in using the language above quoted.

It will be observed that in each and all these cases the defendant had appeared in due and proper time, and filed his answer therein. He was not in default, and he was not before the court asking for any favor at the hands of the court. He was then properly in court, and standing strictly upon his legal rights in reference to the action then pending, and in which he had been summoned to appear. He had submitted himself and his cause to the jurisdiction of the court, and was bound by any action it might take in regard thereto.

In the leading case of Hovey v. Elliott, supra, the case had been at issue for nearly two years, and considerable testimony in the case had been taken by deposition, before the order was made for the payment of money into the registry of the court, the non-compliance’ with the order being the sole cause and only excuse for the court striking out his answer, and the evidence taken in his behalf, declaring the ease in default and ordering all proceedings on the part of defendants in the case to be perpetually stayed.

In concluding its decision in that case the court after pointing out the salient features of the case, concludes its opinion in these suggestive words: “and our opinion is therefore exclusively confined to the case before us."

It is most apparent that the facts in that case were widely and radically different from those in the case at bar. In that case a good and sufficient answer had been filed in due and proper time. In this case no answer had been filed or tendered, and no intimation given the court that the answer desired to be filed would have constituted any defense to the action if it had been admitted. In that case a large amount of testimony on the part of defendant had been taken by depositions and was on file with the court and after all this had been done the order for the payment of money in to the registry of the court was made. In this case no testimony had been taken, the order for the payment of alimony was made at the time of filing the petition, and defendant has never appeared in the case except to ask leave to file an answer without any explanation or excuse for his disregard of the order, and without alleging or ever pretending that he had any meritorious defense to the action.

It must be -readily seen that in Hovey v. Elliott the defendant was not only rightfully in court, but he had certain existing and established rights there, and these rights were not merely denied, but they were swept away by the arbitrary order of the court, on the theory of thereby punishing him for contempt.

In this case defendant had never been in court, but had wilfully refused to appear therein, or to give the slightest heed to the proceedings therein. In that case the defendant was asking no favor or indulgence of the court. In this ease he is in default, and moving the court to grant him both favor and indulgence to wit, leave to appear and answer out of time, because of his ‘wilful refusal to appear when summoned. In that case the order was to punish the contempt. In this case the order is a condition to granting the favor.

No doubt there is language in the case which by analogy may be applied to the case before us but when it is remembered the court expressly limits the decision to the case then before it, it is, to say the least, extremely doubtful whether the case furnishes any authority in a case such as is presented by this record. Most certainly the case was not presented upon the same state of facts as those presented in this case, and’ is therefore not an authority in point in this case, either upon the facts, or the subject matter of the action.

We cannot better at once express our approval of the decision in that case and our dissent from its application to the case before us, than by quoting the remarks of Lord Iials-bury under somewhat similar circumstances, in the case of Quinn v. Leatham (1901) A. C. 495, wherein he said:

“Every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be foundand again, “That a case is only an authority for what it actually decides.”

In the cases of McVeigh v. United States, 11 Wall, 259, and Windsor v. McVeigh, 98 U. S. 274, which were cases arising under the act of congress for the confiscation of the estates of “rebels,” the property of the defendants had been attached by the sheriff, and a monition issued to the owners to show cause why the estates should not be confiscated by the government, and to this order the defendants appeared and answered, setting up title to the property, and denying the right of the government to seize the same. The motion to strike out the answers alleged that defendants were rebels and alien enemies, and therefore had no right to be heard in defense of the action. This motion was sustained, and the answers stricken out and all rights to defend the actions denied them.

' To this argument the supreme court in delivering its opinion replied:

“The order in effect denied the respondent a hearing. It is alleged he was in the position of an alien enemy, and could have no locus standi in that forum. If assailed there he could defend there. The liability and the right are inseparable.”

And later on in the decision the court adds:

“It is difficult to speak of a decree thus rendered with moderation; it was in fact a mere arbitrary edict, clothed in the form of a judicial sentence.”

This comprehensive language finds justification in the extraordinary circumstances of the cases then before it, and must be read as applicable to the facts then being considered.

In neither is there any fact or circumstance common to the ease now under consideration. In each of these instances the party appeared in proper time, and filed his answer. He came into court at a time when he had a legal right to come, and therefore had a legal right in the court at the time he was summarily dismissed therefrom.

The case of Foley v. Foley, 52 Pac., 122, is also relied upon by plaintiff in error as an authority against the judg ment entered in this case. That was an action for divorce, and in that respect in point in this ease. But the statement of facts reads:

“The defendant, Foley, interposed a demurrer to the complaint; but tire court, on motion of plaintiff, struck out his demurrer, and gave judgment against him, as by default, for his failure to pay certain alimony ordered by the court, and for neglect and refusal to subscribe his deposition taken in the action.”

It will thus be seen the defendant in that case was not in default, but was in court in proper time and standing on his legal right, asking no favor of the court beyond what the law gave him, and that these were arbitrarily brushed aside on the theory of thereby punishing him for the contempt. In the case at bar defendant was never in court, save to ask leave of the court to file an answer out of time, and this request was granted, and he was given seven days in which to file his answer, on condition that he now comply with the former order of the court. It is not claimed that the condition which the court attached to granting him the favor asked was onerous, unreasonable or impossible of performance by defendant, and therefore an abuse of discretion; neither was any answer tendered in the case, nor any claim presented to the court in any form demanding the right which is now for the first time presented by the defendant. Had the claim which is now presented in this court and urged with so much tenacity been presented to the court below, it may well be that the trial court would have modified the conditions attached to leave to answer, or have granted the leave without condition.

Only in extraordinary cases will this court reverse the order or ruling of a trial court, where the question upon which the reversal is sought was never submitted or suggested to that court. It must not be forgotten that defendants answer was not stricken out; it was not refused, and the only cause or ground of complaint now is that the condition attached to the favor of the court in granting leave to answer, were beyond the limits of its power.

The powers and authority of the various courts of this Territory are specifically designated in section 9 of the organic act, wherein it is provided, inter alia,

“And said supreme and district courts shall possess chancerj'' as well as common law jurisdiction, and authority for redress of all wrongs committed against the constitution or laws of the United States or of the Territory affecting persons or property.”

This is undoubtedly a delegation of chancery power and authority, to the supreme and district courts of this Territory, as broad and comprehensive as that possessed by the chancery courts of England, and beyond all question confers power in those courts over the process, orders or judgments by them entered, and authorizes the exercise by them of a sound discretion in the manner and form of proceedings therein.

In view of the financial condition of the defendant we do not think that the terms imposed by the court upon the plaintiff in error as prerequisite to filing his answer were unreasonable or burdensome for the defendant to have complied with. Plaintiff in error made no effort to show or even complain that the amount wras excessive, or that he was unable to pay, nor did he ever claim that he had any defense to the merits of the action. Under the facts in this case we do not think there was any abuse of discretion on the part of the trial rourt in imposing the terms it did as a condition to defendant filing his answer in the case. It is impossible to read this record and not be convinced that the plaintiff in error wilfully and intentionally set the trial court at defiance, and both intended and attempted to evade and disregard any order or decree the court might make in the case. See Mahar v. Mahar, 5 Ok. 371.

We find no error in the record, and the decree of the court below will be affirmed.

Burford, C. J., who presided in the court below, not sitting; all the other Justices concurring.