Under pars. 3983, 3984, §§ 105, 106, Code of Civil
Procedure of Oklahoma Territory, of 1893, providing for the entry
of judgment by default and giving the court power in opening the
default to impose such terms as may be just, the court may, without
abusing its discretion, in an action for divorce in which the
husband defendant is flagrantly in default, impose as terms in
granting him leave to answer that he pay within a specified period
to the plaintiff a reasonable sum for alimony and counsel fees
which had already been allowed, and in case of his failure so to do
judgment for the relief demanded in the complaint may properly be
entered against him.
Hovey v. Elliott, 167 U.
S. 409, distinguished.
15 Okl. 287 affirmed.
The question in this case is whether, in a suit for divorce, the
defendant being in default for not answering within the time
allowed by statute, a court may make it a condition of permission
to answer that he comply with the order of the court directing him
to pay temporary alimony and attorney's fees.
It will avoid confusion to designate the parties as they were in
the trial court, the appellee as plaintiff and the appellant as
defendant.
The plaintiff brought suit for divorce against the defendant in
the District Court of Lincoln County, Oklahoma Territory, on the
twenty-first of May, 1903, alleging as the grounds thereof extreme
cruelty. She alleged in her complaint that defendant was the owner
of certain personal property and certain real estate, and that
defendant had, for the purpose of defrauding her, conveyed such
real estate to Harry M. Bennett, a son by a former marriage. She
prayed for a divorce, just division of the real and personal
property, and the custody of a child which had been born to her and
defendant. She also prayed for $1,000 temporary alimony and $1,000
attorney's fees.
Summons was issued requiring defendant to answer by the
Page 208 U. S. 506
tenth day of June, or the petition would be taken as true and
judgment rendered accordingly.
The return of the sheriff recites that he served it on May 22,
1903 at 8:55 A.M., by leaving for defendant, "at his usual place of
residence" in the county, "a true and certified copy" of the
summons "with all the indorsements thereon."
On the day plaintiff filed her petition, she applied for an
order restraining defendant from disposing of his property, and
that he pay into court the sum of $1,000 temporary alimony, "to
support her and carry on her suit," as she was "unable, on account
of sickness and late confinement, to do work of any kind or
character," and that he pay into court $500 for the support and
maintenance of the child born to her and defendant, and also $500
for attorney's fees. Notice of the application was personally
served on defendant. The application was heard by order of the
court at chambers on the twenty-third of May. The defendant did not
appear. A restraining order was granted, and defendant ordered to
pay into the office of the clerk of the court within ten days "the
sum of $1,000, for the use and benefit of the plaintiff as
temporary alimony and suit money," and the sum of $100, attorney's
fees.
On the twenty-third of July, 1903, plaintiff filed an amended
petition, in which she repeated the charges of cruelty, made fuller
allegations as to the property of defendant and attempts at its
disposition. In this petition, Harry M. Bennett, a son of defendant
by a former marriage, was made a party by his next friend and
guardian. Service was made upon the defendants by publication, and
they were required to answer on or before the fourth day of
September, 1903. It also appears from the record, under the head of
"journal entry," that defendant "was duly and legally served,
personally, with an alias summons" after the filing of the amended
petition. By this summons, defendant was required to answer by the
twelfth day of March, 1904. The record shows that, on the
twenty-fourth September, 1903, the following proceedings took
place:
Page 208 U. S. 507
"Come now the plaintiff and defendant, A. W. Bennett, by their
respective counsel, and said defendant submits a motion to set
aside service of summons herein, and the court being fully advised,
it is by the court ordered -- be given leave to amend return on
said summons."
On the same day, Harry M. Bennett was given additional time to
answer, and on the thirtieth of September did answer by his
guardian
ad litem, appointed by the court, denying each
and every allegation of the petition.
The record contains an order which recites that plaintiff and
defendant appeared by attorneys sixth April, 1904, being a regular
court day, and also recites,
"this motion comes up for hearing, on the motion of Albert W.
Bennett, who appears specially by his attorneys, for the purpose of
this motion only, and for no other purpose, to set aside the
summons in this case."
The grounds of the motion are given. The court overruled the
motion and defendant excepted. "Whereupon," the order recites,
"the defendant Albert W. Bennett, by his attorneys, offered to
file his answer in this cause, instanter, which said offer was
refused by the court for the reason that the said defendant is in
contempt of this Court by reason of his failure and refusal to
comply with the order of the court, heretofore made, to pay to the
plaintiff in this cause, the sum of $1,000 as and for temporary
alimony, and $100 as attorney's fees in this case, but made the
further order that the said defendant should be permitted to file
said answer within five days on condition that he purge himself of
said contempt by complying with said order within that time; to
which order of the court the defendant Albert W. Bennett excepted
at the time."
In the decree of the court, the proceedings are stated as
follows:
"The court further finds that, on the fifth day of April, 1904,
the defendant A. W. Bennett appeared by his attorneys and asked
leave to file his answer herein out of time, which request was
objected to by the plaintiff, for the reason that the said
defendant had failed to comply with an order theretofore made
Page 208 U. S. 508
to pay to the clerk of the court for the use of the plaintiff
the sum of $1,000 as and for temporary alimony and the further sum
of $100 as and for attorney fees for her attorneys, and the court
being advised that the defendant had not complied with said order
or offered any excuse for his failure so to do, his application for
leave to answer is refused until he shall comply with said former
order or show cause why he has not, and he is given five days to
make said showing and in which to file his said answer."
And the decree further recites that, on the twenty-ninth day of
April, 1904, the cause came on for trial, and plaintiff appeared
and Harry M. Bennett also appeared,
"and the defendant A. W. Bennett having failed to comply with
the former order of the court or make excuse for not complying, and
having failed to answer the petition of plaintiff herein, the said
defendant A. W. Bennett is now called three times in open court,
but makes default and fails to plead or otherwise appear in said
cause, and the said A. W. Bennett is by the court adjudged to be in
default for an answer, and not entitled to answer or plead until he
shall comply with the order heretofore made, wherein the said A. W.
Bennett was ordered by the court to pay to the plaintiff $1,000
temporary alimony and $100 attorney fees for her attorneys."
The decree dissolved the marriage between plaintiff and
defendant, awarded her the custody of their child, awarded her the
homestead as her sole property and $6,000 permanent alimony and
$500 attorney's fees. The decree vacated the order made for
temporary alimony and the payment of $100 attorney's fees. The
decree was affirmed by the supreme court of the territory. This
appeal is from that part of the decree awarding alimony and
attorney's fees.
Page 208 U. S. 510
MR. JUSTICE McKENNA: after stating the case as above, delivered
the opinion of the Court.
The assignment of errors attacks the decree of the supreme court
because (1) the court decided or assumed that defendant was in
contempt for not complying with the order for temporary alimony;
(2) in so holding or deciding, though defendant had not been cited
to show cause why he should not be adjudged in contempt for not
complying with the order; (3)(4) in affirming the action of the
trial court refusing permission to defendant to answer to or make
defense against the amended petition except on condition that he
should comply in five days with the order for temporary alimony;
(5) in
Page 208 U. S. 511
affirming decree of the court awarding plaintiff $6,500
permanent alimony and attorney's fees and certain real property
constituting the homestead of the parties.
The assignments of error are based upon a misunderstanding of
the action of the trial court and the opinion of the supreme court.
They proceed upon the supposition that he was not in culpable
default to the law and the orders of the court -- a default after
amplest opportunity to be heard and to contest every charge and
claim against him.
The summons issued upon the original petition was served upon
him by leaving a copy of it at his usual place of residence, as
under the law it could be served. Okl.Stat. 1903, § 3938. It
contained the notification that, unless he answered by the
sixteenth of June, 1903, the petition would be taken as true, and
judgment would be rendered accordingly. He paid no attention to it.
Yet there is more than the legal presumption that he received it,
for on the day preceding, there had been served on him a notice of
the application for the temporary alimony and attorney's fees, the
order to pay which makes the pivot of this controversy. He does not
seem to have been sensitive to the charges against him, and, it may
be, he thought his property was secure from the demands of the
plaintiff by the conveyance to his son on the day before. The order
upon the application was made May 23, 1903. He did not obey it. On
the twenty-first of July, 1903, the amended petition was filed. It
was served by publication, he having changed his residence to
Nevada. He was notified to answer on or before September 4, 1903.
He did not answer, but, on September 24, he appeared by counsel and
submitted a motion to set aside service of summons, upon which
motion the record shows the court made the following order: "It is
by the court ordered -- be given leave to amend return on said
summons." He was subsequently personally served with an alias
summons.
It required an answer to the petition on or by the twelfth of
March, 1904. An answer was not filed. On the sixth of April
following, a special appearance was entered and a motion
Page 208 U. S. 512
made to set aside the summons and the alias summons on various
grounds, which motion was denied after hearing. The defendant then
offered to file an answer "instanter," and the offer was refused on
the ground that he was in contempt of court for not complying with
the order for temporary alimony. It was, however, ordered that he
should be permitted to file an answer "within five days on
condition that he purge himself of said contempt by complying with
said order within that time." From the decree of the court it
appears that its order was not so absolute, but that he was given
an opportunity to show why he had not complied with the order for
alimony. Had the court the power to impose the conditions? Could
the court have imposed any conditions or terms at all, and what was
the limit of its power? If the court had a discretion, it cannot be
reviewed unless it was unreasonably exercised. And the court
certainly had a discretion. We have seen that § 3933 of the
statutes of the territory prescribes the result to a defendant for
default in not appearing to be that the petition against him will
be taken as true and judgment shall be rendered accordingly. If
there is any modification of this in a suit for divorce, it gives
no rights to a defaulting defendant. Section 3983 of the Code of
Civil Procedure of the territory provides that a defendant must
demur or answer within twenty days after the day on which the
summons is returnable, and § 3984 is as follows:
"The court, or any judge thereof in vacation, may, in his
discretion, and upon such terms as may be just, allow an answer or
reply to be made, or other act to be done, after the time limited
by this act, or, by an order, enlarge such time."
The question, then, can only be whether the court abused the
discretion given to it by that section. Were the terms which the
court-imposed just?
The record demonstrates that the order for alimony was
reasonable in itself and reasonable in relation to the means and
obligations of defendant to plaintiff. According to plaintiff's
petition, and presumably according to proof submitted
Page 208 U. S. 513
to the court upon the application for alimony, of which
defendant had notice, plaintiff was compelled by his cruelty to
leave him with her child, then only a month old. She had no means
to support herself and child. She was sick and unable to seek work.
She was without means to carry on her suit for divorce. This was
her situation as presented to the court, and defendant did not
appear to deny it. He did not appear to deny that he owned real
estate in the county where he lived of the value of $20,000, and in
other places of the value of $14,000; that he had bank deposits of
$10,000, and other personal property of the value of $15,000. He
did not appear to deny that his cruelty -- a cruelty of a peculiar
kind -- had driven her with her infant from his house. To this he
was not sensitive. He was, however, not without anxiety for some of
the consequences of the charge, and immediately set about to
dispose of his property. After this, he seemed to feel secure,
either in misunderstanding of his rights or in some perverted
notion that he could evade or defy the law. At any rate, he did not
appear and he did not obey the order of the court. Whether it could
have been directly and expeditiously enforced against him may be
doubted. He had put his property in the name of others. An
execution therefore would have encountered that obstacle, and
personal coercion might not have been possible, for certainly as
early as July, 1903, he had changed his residence to Virginia City,
Nevada. Besides, under the circumstances, plaintiff cannot urge
that compliance with the order of the court could have been
enforced in some other way than that adopted. It may be that the
poverty which made the order of the court a necessity to her
prevented her from enforcing the order, and the defendant may have
deliberately planned to that end. And it may have appeared to the
court at the hearing of April 5, 1904, that he had done so. It may
have appeared to the court that his contumacy was without just
cause or reason, and it would be continued to defeat the order of
the court, though he should receive from its discretion a remission
of the consequences of his default. Take the order of
Page 208 U. S. 514
the court in its most absolute sense and, we say again, it was
reasonable. Take it as described in the final decree and it was
indulgent. It added another opportunity to be heard in addition to
those defendant had been given.
The plaintiff in error, without any discussion of the section of
the Oklahoma statutes which we have quoted, attempts to avoid their
effect by the contention that he had never been adjudged guilty of
contempt, and, even if he had been, the power of the court to
punish him was limited by a statute of the territory to imposition
of a fine or a sentence of imprisonment. He hence seeks to invoke
the doctrine of
Hovey v. Elliott, 167 U.
S. 409. The contention is based, as we have said, upon
the assignment that the assignments of error are, upon a
misconception of the action of the court. The principle of
Hovey v. Elliott therefore is not applicable. Indeed, the
point was reserved in that case whether one in contempt could be
refused a right under a statute invoked by him as actor. But we
need not stop to consider whether the reasoning, which we may say
now we entirely approve, or the cases cited, carry the principle of
the case to the point reserved, for we are of opinion that the
pending case is not within the principle. The question here, we
repeat, is the simple one whether, under the statute giving the
power to a court to allow a defaulting defendant to answer "upon
such terms as may be just," the order in controversy was within the
power. And being of opinion that an affirmative answer is
justified, the decree of the supreme court of the territory is
Affirmed.
MR. JUSTICE BREWER dissents.
