Hutchinson v. Hutchinson

• Decision Date: 25 September 1928
• Citation: 126 Or. 519,270 P. 484
• Parties: HUTCHINSON v. HUTCHINSON.
• Court: Oregon Supreme Court

270 P. 484

126 Or. 519

HUTCHINSON v. HUTCHINSON.

Supreme Court of Oregon

September 25, 1928

In Bank.

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Action by Ruth E. Hutchinson against Samuel D. Hutchinson. Judgment for plaintiff, and defendant appeals. Reversed and remanded with directions.

The errors assigned on this appeal are based on the court's order directing defendant to pay $150 suit money and $50 per month as temporary alimony pending the suit in the circuit court. Defendant filed an affidavit for the purpose of showing that he was financially unable to make the payments ordered. The learned circuit court ruled against defendant held him to be in contempt, and denied him the right to participate in the trial of the case. That portion of the decree referring to the ruling denying him right to participate in the trial is as follows:

"Now at this time the court being fully advised in the premises it is ordered as a punishment for defendant's contempt of court that said defendant be not allowed to appear in this suit either personally or by his attorneys or to cross-examine the plaintiff's witnesses or to participate in the trial of said suit or to offer any testimony in support of the allegations of his further and separate answer and cross-complaint herein."

Defendant asked permission to cross-examine plaintiff's witnesses to introduce testimony controverting the evidence advanced by plaintiff, to prove the allegations of his crosscomplaint and otherwise participate in the trial as a litigant. The court denied defendant's requests. Defendant appeals from the entire judgment and decree. The only ground for charging defendant with contempt is his failure to pay the money ordered to be paid as suit money and temporary alimony. Has a court authority to prevent a defendant from defending himself because he fails to obey the court's order to pay temporary alimony or suit money in a pending divorce suit is the question presented by this appeal. Plaintiff and respondent makes no appearance in this court.

Harold Banta, of McMinnville, and C. W. Robison, of Astoria, for appellant.

Norblad & Hesse, of Astoria, for respondent.

COSHOW, J. (after stating the facts as above).

The question presented by this appeal is of first impression here. It has been determined by the highest court in the land. The case of Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215, involved the same principle. The opinion in that case was written by Mr. Justice White, afterward Chief Justice, and is exhaustive. From that opinion we quote:

"On February 12, 1878, the Supreme Court of the District of Columbia at general term made decree as follows:

" 'The answer of defendants having been removed from the files for their contempt in refusing to obey the order of court and deposit in the registry the sum of $49,297.50, it is now ordered, adjudged and decreed that the bill be taken pro confesso against them.'

"* * * To say that courts have inherent power to deny all right to defend an action and to render decrees without any 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."

That such an exercise of power violates the Fourteenth Amendment to the Federal Constitution is settled by a later decision of the Federal Supreme Court, in which the same eminent justice wrote the opinion from which we take the following:

"The ruling in Hovey v. Elliott was that to punish for contempt by striking an answer from the files and condemning, as by default, was a denial of due process of law, and therefore repugnant to the Fourteenth Amendment." Hammond Pack. Co. v. State, 81 Ark. 519, 100 S.W. 407, 1199, 126 Am. St. Rep. 1047; Id., 212 U.S. 322, 29 S.Ct. 370, 379, 53 L.Ed. 530, 15 Ann. Cas. 645.

This ruling makes it clear that the decision in Hovey v. Elliott is binding on this court.

The principle is especially applicable to divorce cases. In such cases the state is interested in maintaining the marital relation. Public policy forbids collusive divorce cases. Ever since the decision in Hovey v. Elliott, above, courts of last resort of all the states having the principle under consideration have followed in divorce cases Hovey v. Elliott. Sibley v. Sibley, 76 A.D. 132, 78 N.Y.S. 743, overrules earlier New York cases holding to the contrary. The case of Sibley v. Sibley was a suit instituted by a wife against her husband for legal separation and for alimony. Defendant's answer was stricken, and defendant not allowed to participate in the trial, as the learned circuit court ruled in the case at bar. In Sibley v. Sibley, above, the opinion contains the following pertinent language:

"The judgment deprives the appellant of property and of contract property rights, and his exceptions fairly present the question as to whether his property has been taken without due process of law, within the meaning of section 1 of the Fourteenth Amendment to the Federal Constitution. The defendant did not institute the action; and he did not ask that it be tried. The plaintiff forced it to trial against his will, and a judgment resulted which deprived him of property without his having been heard in defense of his rights. This the Supreme Court of the United States has quite recently unanimously decided may not be done. Hovey v. Elliott, 167 U.S. 409 [17 S.Ct. 841, 42 L.Ed. 215]." 76 A.D. 132, 135, 78 N.Y.S. 745.

A very instructive case is Bennett v. Bennett, 15 Okl. 286 81 P. 632, 70 L. R. A. 864, 83 P. 550; Id., 208 U.S. 505, 28 S.Ct. 356, 52 L.Ed. 590. In the last case cited the question under consideration was thoroughly discussed from various angles. The principle is announced that one in contempt will not be granted a favor by the court until he has purged himself of the contempt. The court has not the power to deprive the contemnor of a right as...