Buck v. Buck
| Decision Date | 30 September 1871 |
| Citation | 1871 WL 8091,60 Ill. 105 |
| Parties | IRA A. W. BUCKv.ELLEN BUCK. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Kane county; the Hon. SILVANUS WILCOX, Judge, presiding.
Mr. C. J. METZNER, for the appellant.
Messrs. WHEATON, SMITH & MCDOLE, for the appellee.
This was a proceeding against the appellant, by attachment for contempt, in not complying with a decree of the circuit court of Kane county, in a suit for a divorce, ordering him to support and educate an adopted child of the parties.
The first point made is, that the court erred in ordering the attachment, for the reason that there was no jurisdiction of the person of the defendant in the suit wherein the decree was rendered, as there was no sufficient service of the summons.
The return of service was, by leaving a copy of the summons with the defendant.
The service required by the statute, is by delivering a copy to the defendant. It is supposed, that here was an essential difference. We fail to perceive it. We regard the two forms of expression as equivalent, and that the return shows the required service by delivering a copy of the summons to the defendant.
In the court below, interrogatories had been filed, to which defendant had filed his answer. The court ruled, that notwithstanding the answer, the defendant must purge himself of the contempt in open court, whereupon the defendant was sworn, and testified.
This ruling of the court is assigned as error.
A difference obtains between the practice, in this respect, in courts of law and in courts of equity. In the former, if the defendant clears himself by his answer, he will be discharged, and the complaint totally dismissed; whereas, in the courts of equity, after the party has answered the interrogatories, his answer may be contradicted and disproved by the adverse party. The attachment for this species of contempt, the disobedience of an order to pay money, is to be looked upon rather as a civil execution for the benefit of the injured party, though carried on in the shape of a criminal process for a contempt of the authority of the court. 4 Black. Com. 288; Crook v. The People, 16 Ill. 535.
It is a singular mode of trial, admitted in this particular instance of contempt, where ordinary rules governing criminal trials do not apply; and we see no sufficient objection in this case to the adverse party having resort to the testimony of the defendant, as might be done in a civil case. No replication to the answer was necessary, as claimed. The practice of the courts of chancery recognizes no such thing as a replication to an answer to interrogatories filed in such a proceeding as this.
We hold there was no error in this ruling of the court.
It is objected, that the sum of $251, which the court ord...
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