Park v. . Park

Miller, J. The claim of the counsel for the appellant, that the judge erred in assuming to decide a matter which was not before him, is not, we think, well founded. The O proceeding before the Special Term was upon the return of the attachment against the defendant for an alleged contempt, in disobeying the provision contained in the decree of divorce between the plaintiff and himself, requiring the defendant to pay and give security for the payment of the allowance granted to the plaintiff. The whole matter relating to this provision was before the court, and it had complete jurisdiction to grant such relief and to make such "order as the facts and circumstances warranted. Instead of compelling the defendant to pay the whole amount of alimony in arrears, or to give security for the same, the court in the exercise of its discretion, upon the hearing, only required security for the payment of alimony which might become due in the future. This was clearly within its jurisdiction, and more favorable to the defendant than, under the circumstances, might have been required. There was, we think, no ground for vacating the attachment because the proper papers were not served ; and it was sufficient that a' copy of the decree, which made provision for the payment of alimony, was served upon the defendant, with a statement of the amount unpaid, and a demand made for the same. The decree was the foundation of the proceeding, and it contained all that was *160 necessary to advise the defendant of the nature of the claim made against him. The Code of Civil Procedure (§ 14) provides that a court of record may punish by fine and imprisonment, or either, in certain cases which are enumerated, and among them, under subdivision three, for “disobedience to the lawful mandate of a court.” The proceeding was under this provision, and the defendant was fully advised that he was proceeded against on this ground. The claim that the attachment should be vacated oecause it was based on the refusal of, the defendant to pay the costs of the suit, is sufficiently answered by the fact that it was issued for a disobedience of the order of the court. The provisions of chapter 390, Laws of 1847, have no application to such a case. The objection that the court had no jurisdiction to decree alimony because no complaint demanding alimony was served, is not well taken. As we have seen, service of a copy of the decree was sufficient; and as it does not appear that the judgment exceeded the demands of the complaint, no injustice was done. The proper course, if the judgment was wrong in this respect, would be to move to vacate or modify the same. We think "that the plaintiff was not estopped from enforcing payment of alimony by reason of the provision in the decree authorizing an execution to be issued. The proceeding is for disobedience of an order of the court and to compel the defendant to furnish the security required by the decree, and the final order of the Special Term, provides for this as to future alimony. The provision that execution may issue does not interfere with the order that security be furnished. The position that payment of the costs and alimony cannot be enforced by proceedings for contempt, is sufficiently answered in the opinion of the General Term, with which we concur, and does not require discussion. The claim that the Special Term erred in not vacating the-attachment because no order was made for the issuing of *161 the same by any competent authority, and no competent authority fixed the amount of bail, cannot be upheld. The decree provided for the payment of alimony and,the giving of security, and a failure to comply with its mandate would entitle the plaintiff to relief. The attachment was to answer for this failure and contained an indorsement that it was issued by the special order of the court, and that the defendant should be held to bail in the sum of three hundred dol-. lors, and was signed by the clerk of the court. The presumption is that such an order had been made, or the clerk would not have so certified. In the absence of any objection made at Special Term as to the right of the clerk to make such direction, or of any request to produce the order, the indorsement Avas, Ave think, sufficient to show that such order Avas actually made. Aside, hoAvevcr, from this, it is a complete ansAver to the .objection now urged, that it was not .taken before the Special Term, and no motion made to set aside the attachment upon any such ground. On the contrary, upon the return the defendant orally moved to vacate the attachment upon several grounds Avhich appear in the appeal papers; but the objection referred to Avas not one of them. In fact, after other" objections had been made and Avero overruled, interrogatories Avore filed and ansAvered, testimony taken as to the ability of the defendant to give security, and the entire proceeding brought to a hearing, without any such objection being interposed. Had the point now urged been taken, it might haArc been.obviated by the production of the proper order authorizing the attachment and fixing the amount of bail. As it is evident that the objection was not made, and no opportunity Avas given to meet the same, it must, under the circumstances, be regarded as waived by the defendant. No rule is better settled than that on a motion to set aside a proceeding of this kind for irregularity, the party must state the grounds of his motion and shoAv affirmatively the defect or omission of which he complains, and by affidavit or otherwise must create such a presumption as will cast upon the other party the onus of *162 proving that his proceedings are regular: (Baker v. Stephens, 10 Abb. [N. S.], 1.) The defendant did no such thing.; and as there was an entire failure in this respect, and the proceedings were had without any such objection being properly presented, it is not now available. It may also be observed that no such objection, is considered in the opinion of the General Term, and it appears to have boon now raised on appeal for the first time. No other questions raised demand discussion, and the order must be affirmed, with costs. All concur. Order affirmed.