US SUPREME COURT DECISIONS

Under pars. 3983, 3984, §§ 105, 106, Code of Civil Procedure of Oklahoma Territory, of 1893, providing for the entry of judgment by default and giving the court power in opening the default to impose such terms as may be just, the court may, without abusing its discretion, in an action for divorce in which the husband defendant is flagrantly in default, impose as terms in granting him leave to answer that he pay within a specified period to the plaintiff a reasonable sum for alimony and counsel fees which had already been allowed, and in case of his failure so to do judgment for the relief demanded in the complaint may properly be entered against him. Hovey v. Elliott, 167 U. S. 409, distinguished.

15 Okl. 287 affirmed.

The question in this case is whether, in a suit for divorce, the defendant being in default for not answering within the time allowed by statute, a court may make it a condition of permission to answer that he comply with the order of the court directing him to pay temporary alimony and attorney's fees.

It will avoid confusion to designate the parties as they were in the trial court, the appellee as plaintiff and the appellant as defendant.

The plaintiff brought suit for divorce against the defendant in the District Court of Lincoln County, Oklahoma Territory, on the twenty-first of May, 1903, alleging as the grounds thereof extreme cruelty. She alleged in her complaint that defendant was the owner of certain personal property and certain real estate, and that defendant had, for the purpose of defrauding her, conveyed such real estate to Harry M. Bennett, a son by a former marriage. She prayed for a divorce, just division of the real and personal property, and the custody of a child which had been born to her and defendant. She also prayed for $1,000 temporary alimony and $1,000 attorney's fees.

Summons was issued requiring defendant to answer by the chanrobles.com-red

Page 208 U. S. 506

tenth day of June, or the petition would be taken as true and judgment rendered accordingly.

The return of the sheriff recites that he served it on May 22, 1903 at 8:55 A.M., by leaving for defendant, "at his usual place of residence" in the county, "a true and certified copy" of the summons "with all the indorsements thereon."

On the day plaintiff filed her petition, she applied for an order restraining defendant from disposing of his property, and that he pay into court the sum of $1,000 temporary alimony, "to support her and carry on her suit," as she was "unable, on account of sickness and late confinement, to do work of any kind or character," and that he pay into court $500 for the support and maintenance of the child born to her and defendant, and also $500 for attorney's fees. Notice of the application was personally served on defendant. The application was heard by order of the court at chambers on the twenty-third of May. The defendant did not appear. A restraining order was granted, and defendant ordered to pay into the office of the clerk of the court within ten days "the sum of $1,000, for the use and benefit of the plaintiff as temporary alimony and suit money," and the sum of $100, attorney's fees.

On the twenty-third of July, 1903, plaintiff filed an amended petition, in which she repeated the charges of cruelty, made fuller allegations as to the property of defendant and attempts at its disposition. In this petition, Harry M. Bennett, a son of defendant by a former marriage, was made a party by his next friend and guardian. Service was made upon the defendants by publication, and they were required to answer on or before the fourth day of September, 1903. It also appears from the record, under the head of "journal entry," that defendant "was duly and legally served, personally, with an alias summons" after the filing of the amended petition. By this summons, defendant was required to answer by the twelfth day of March, 1904. The record shows that, on the twenty-fourth September, 1903, the following proceedings took place: chanrobles.com-red

Page 208 U. S. 507

"Come now the plaintiff and defendant, A. W. Bennett, by their respective counsel, and said defendant submits a motion to set aside service of summons herein, and the court being fully advised, it is by the court ordered -- be given leave to amend return on said summons."

On the same day, Harry M. Bennett was given additional time to answer, and on the thirtieth of September did answer by his guardian ad litem, appointed by the court, denying each and every allegation of the petition.

The record contains an order which recites that plaintiff and defendant appeared by attorneys sixth April, 1904, being a regular court day, and also recites,

"this motion comes up for hearing, on the motion of Albert W. Bennett, who appears specially by his attorneys, for the purpose of this motion only, and for no other purpose, to set aside the summons in this case."

The grounds of the motion are given. The court overruled the motion and defendant excepted. "Whereupon," the order recites,

"the defendant Albert W. Bennett, by his attorneys, offered to file his answer in this cause, instanter, which said offer was refused by the court for the reason that the said defendant is in contempt of this Court by reason of his failure and refusal to comply with the order of the court, heretofore made, to pay to the plaintiff in this cause, the sum of $1,000 as and for temporary alimony, and $100 as attorney's fees in this case, but made the further order that the said defendant should be permitted to file said answer within five days on condition that he purge himself of said contempt by complying with said order within that time; to which order of the court the defendant Albert W. Bennett excepted at the time."

In the decree of the court, the proceedings are stated as follows:

"The court further finds that, on the fifth day of April, 1904, the defendant A. W. Bennett appeared by his attorneys and asked leave to file his answer herein out of time, which request was objected to by the plaintiff, for the reason that the said defendant had failed to comply with an order theretofore made

Page 208 U. S. 508

to pay to the clerk of the court for the use of the plaintiff the sum of $1,000 as and for temporary alimony and the further sum of $100 as and for attorney fees for her attorneys, and the court being advised that the defendant had not complied with said order or offered any excuse for his failure so to do, his application for leave to answer is refused until he shall comply with said former order or show cause why he has not, and he is given five days to make said showing and in which to file his said answer."

And the decree further recites that, on the twenty-ninth day of April, 1904, the cause came on for trial, and plaintiff appeared and Harry M. Bennett also appeared,

"and the defendant A. W. Bennett having failed to comply with the former order of the court or make excuse for not complying, and having failed to answer the petition of plaintiff herein, the said defendant A. W. Bennett is now called three times in open court, but makes default and fails to plead or otherwise appear in said cause, and the said A. W. Bennett is by the court adjudged to be in default for an answer, and not entitled to answer or plead until he shall comply with the order heretofore made, wherein the said A. W. Bennett was ordered by the court to pay to the plaintiff $1,000 temporary alimony and $100 attorney fees for her attorneys."

The decree dissolved the marriage between plaintiff and defendant, awarded her the custody of their child, awarded her the homestead as her sole property and $6,000 permanent alimony and $500 attorney's fees. The decree vacated the order made for temporary alimony and the payment of $100 attorney's fees. The decree was affirmed by the supreme court of the territory. This appeal is from that part of the decree awarding alimony and attorney's fees. chanrobles.com-red

Page 208 U. S. 510