Barclay v. Barclay
| Decision Date | 19 February 1900 |
| Citation | 184 Ill. 375,56 N.E. 636 |
| Parties | BARCLAY v. BARCLAY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to circuit court, Cook county; M. F. Tuley, Judge.
Proceedings by Grace Leslie Barclay against John Charles Barclay to compel payment of alimony. From a judgment for the plaintiff, defendant brings error. Affirmed.Thornton & Chancellor, for plaintiff in error.
James Maher, for defendant in error.
On June 27, 1899, the defendant in error, upon a decree awarded to her for the payment of alimony in her suit for separate maintenance, on a petition, which was duly verified, showing that the sum of $532 was due her, after personal service of notice of the application therefor, obtained a rule on the plaintiff in error, her husband, to show cause why he should not be attached for contempt of court for disobedience of the order of court requiring him to pay the alimony. To this rule the plaintiff in error filed his answer in the nature of a plea in abatement, duly verified, averring that on the 5th day of July, 1899, he had filed his petition in the bankruptcy court, in and by which he avers that he had exhibited and scheduled this indebtedness in favor of the defendant in error, and asked to be discharged therefrom. On hearing, the circuit court adjudged the plaintiff in error guilty of a contempt of court for failure to pay the sum of money accruing to defendant in error as her alimony, and found the sum then due to be $532, and, to compel the plaintiff to pay this amount, ordered that an attachment should forthwith issue against his person. The plaintiff in error brings the record to this court, and insists, first, that the proceedings should have been stayed in the circuit court until the adjudication on the bankruptcy petition; and further insists that this court should take jurisdiction of this case because it requires a construction of section 12 of article 2 of the constitution, which is as follows: ‘No person shall be imprisoned for debt, unless upon refusal to deliver up his estate for the benefit of his creditors, in such manner as shall be prescribed by law, or in cases where there is strong presumption of fraud;’ and insists that an imprisonment for contempt was a violation of that provision. It has been frequently held that the commitment of a defendant for contempt for refusing to pay alimony is not an imprisonment for debt, from which he can claim exemption under the provisions of a constitution prohibiting imprisonment for debt. Wightman v. Wightman, 45 Ill. 167;Carlton v. Carlton, 44 Ga. 216;Menzie v. Anderson, 65 Ind. 239;Allen v. Allen, 100 Mass. 373. The liability to pay alimony is not founded upon a contract, but is a penalty imposed for a failure to perform a duty. It is not to be enforced by an action at law in the state where the decree is entered, but is to be enforced by such proceedings as the chancellor may determine and adopt for its enforcement. As heretofore shown, it may be enforced by imprisonment for contempt without violating the constitutional provision prohibiting imprisonment for debt. The decree for alimony may be changed from time to time by the...
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...or changed at any time. Wetmore v. Markoe, 196 U. S. 68, 25 Sup. Ct. 172, 49 L. Ed. 390, 2 Ann. Cas. 265;Barclay v. Barclay, 184 Ill. 375, 56 N. E. 636, 51 L. R. A. 351;Audubon v. Shufeldt, 181 U. S. 575, 21 Sup. Ct. 736, 45 L. Ed. 1009.Andrew v. Andrew, 62 Vt. 495, 20 Atl. 819. In the Audu......
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