Brown v. Brown

• Decision Date: 25 August 1924
• Citation: 126 A. 36,96 N.J.Eq. 428
• Court: New Jersey Court of Chancery
• Parties: DELLA BROWN, petitioner, v. JOHN BROWN, defendant

126 A. 36

BROWN

v. BROWN.

Court of Chancery of New Jersey.

Aug. 25, 1924.

(Syllabus by the Court.)

Proceeding by Delia Brown against John Brown. On order to show cause why defendant should not be adjudged guilty of contempt of court. Order discharged.

Robert Queen, of Trenton, for the motion.

WALKER, Ch. This is a case on habeas corpus concerning the custody of an infant child of the above-named parties (petitioner and defendant), who are husband and wife. The writ was served on the defendant, who appeared and produced the child on the return day. Thereafter its custody was awarded to third persons, who were relatives, and who had been made parties to the suit. Prior to that, defendant apparently became a fugitive from justice, and afterwards had the child removed from this state to his place of abode on Staten Island, New York, where he was served with a copy of the order to show cause in this case. I say "apparently" because the affidavits tending to prove the facts recited are principally hearsay, which is not legal evidence. In re McOraven, 87 N. J. Eq. 28, 99 Atl. 619. However, the conclusion at which I have arrived permits me to assume that defendant has removed the child beyond the territorial limits of New Jersey.

And I assume too, and am of opinion, that, if the defendant in a criminal contempt case is served with due and proper notice of the proceeding against him within the jurisdiction of the court, and does not appear either in person or by counsel, but makes default, he may be condemned on ex parte affidavits, notwithstanding anything that was said in the Staley Case, infra, for it was also said in that case, concerning the rights of a defendant charged with criminal contempt (83 N. J. Eq. at page 305, 90 Atl. 1042, L. R. A. 1917B, 113, Ann. Cas. 1916B, 955), that one of those rights was that the facts by which his guilt is to be determined shall be established by the oaths of witnesses subject to cross-examination and impeachment, unless the accused either expressly or by implication waived the right, as to which point nothing was decided.

Now, for the court to sit and hear oral testimony, when defendant is absent through default, after due and legal notice, and is not represented by counsel, would be but an idle gesture, as there would be no one to cross-examine the witnesses, or to impeach their credibility, provided, however, that the affidavits had been duly served upon defendant, and were in and of themselves legal evidence. Defendant, being absent, would have a right to reply on being condemned by legal evidence only. In re McCraven, supra. If the affidavits did not, by legal evidence, make a case against him, the defendant could absent himself with confidence that there would be an entire failure of proof. Butts v. French, 42 N. J. Law, 397, 400.

Nor is there anything in Re Schmidt, 88 N. J. Eq. 21. 102 Atl. 264, to the effect that ex parte affidavits cannot be used on the hearing of a contempt, that militates against the view that they can upon defendant's default, for the Schmidt Case was one in which the defendant appeared, and the observation was made with reference to a litigated case.

This court having jurisdiction of the cause and of the parties, it was a contempt in the defendant to remove or cause to be removed out of this state the subject-matter of the litigation, namely, the child. 13 Corp. Jur. 9. And this is a criminal contempt, namely, one against the power, authority, and dignity of the court—one which is an offense against organized society itself. Staley v. South Jersey Realty Co., 83 N. J. Eq. 300, 90 Atl. 1042, L. R. A. 1917B, 113, Ann. Cas. 1916B, 955. If it were a civil contempt, that is, the refusal to obey an act commanded for the benefit of the petitioner, a proceeding remedial in character (Id. 304 ), I think there could be no doubt of the legal efficacy of the service of the order to show cause out of this state. In such case it would be but a step in the case, and defendant being in court, the manner of service, including time and place, and whether within or without the state, could be directed by the...