Gerard v. Gerard — 6 Sarat. Ch. Sent. 55

Majority

p. 55

Eloise Gerard v. George Gerard.^[1]

E. A. Doolittle, for appellant;

M. T. Reynolds, for respondent.

Headnote

Terms of open-^fersoMlíer-of subP03-

Terms where has ,been no personal service.

Appeal from an order of the vice chancellor of the third circuit. The bill was for a divorce, for adultery; and a decree was obtained by the complainant, by default. The defendant who was a non resident of the state, obtained an order opening the decree and the order pro confesso and allowing him to put in an answer denying the adultery, on payment of costs. And it was referred to a master to report a suitable allowance for ad interim alimony to the wife, and for the expenses of the future litigation. The defendant paid the' costs, and put in an answer denying the adultery; and a replication was filed. Subsequently the master made his report. And upon an affidavit that the allowance reported had been demanded of the defendant’s solicitor, and not paid, and that the defendant was an absentee, the vice chancellor directed his answer to be taken off the files, and that the former decree for a divorce should be restored unless the allowance for alimony and expenses of the suit should be paid within a specified time.

The Chancellor said that if the decree was taken against the defendant for want of appearance, after a personal service of the sub-ptsna the vice chancellor was authorized to impose such terms as-he pleased upon the defendant, as a condition of opening the decree ; and that he might require him to give security for the pay ment of ad interim alimony to the wife pendente lite, as well as an allowance for the necessary expenses of the suit. But that if the bill was taken as confessed against the defendant as an . ° without an actual service of the subpoena, the court had no right to require the payment, or security for payment of any thing be

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yond the necessary costs and expenses of the suit, as a condition of letting him in to .defend; if he made his application within the time prescribed by the statute. (Jee 2 R. S. 187 §133, 178.)

A party is not in contempt for not paying alimony, without a previous order directing him to pay it. Form of order of reference as to alimony. ■

That as the defendant was permitted, by the order of the vice chancellor, to come in and defend the suit, upon the sole condition of his faying the costs, without being required to pay the amount which should he allowed by the master for alimony, he had a right, on payment of the costs, and putting in an answer denying the adultery, to have the question of his guilt or innocence tried by a jury; even if he was subsequently guilty of a contempt for neglecting to pay the amount allowed by the master.

That the defendant could not be brought into contempt for not paying the amount allowed for alimony, without a previous order of the court directing him to pay the sum which should be allowed by the master.

That the order for a reference as to alimony should direct that upon the coming in and confirmation of the master’s report the husband should pay to the wife the sum reported by the master, at the times and in the manner specified by the master ; so that after the report has been confirmed by the usual order nisi the husband will be bound to pay such allowance without the necessity of a further application to the court.

Order appealed from reversed.