Pain v. . Pain

*324 Smith, 0. J. This appeal from the interlocutory order., allowing the plaintiff alimony,,pendente lite, brings before us for examination two- exceptions only : 1. The refusal of the judge to hear further evidence of the amount and value of the defendant’s estate and argument from his counsel. 2. The penalty imposed in the decretal order for failure to comply with it. The case shows that on the motion for the allowance the amended complaint verified by the plaintiff’s oath was read,, and no other evidence was offered by either party. The subject matter of the complaint and the sufficiency of its averments, upon an issue raised by demurrer, had been fully discussed before the judge at chambers the day pre-' vious. The motion was granted and the written order set out in the record was prepared and read in the hearing of both parties. Thereupon the defendant’s counsel insisted upon the reading of the1 referee’s report in full and his right to further argument. His Honor declined to hear the report read, but its statements as to the defendant’s property and income were commented on by both the counsel. This refusal is now assigned for error. The complaint not only sets- out the plaintiff’s grievances and the defendant’s acts of cruelty and wrong, the grounds on which she seeks a separation, but an estimate of the value of bis real and personal estate. This was sufficient evidence to warrant the making the allowance and fixing its amount. Gaylord v. Gaylord, 4 Jones Eq., 74; Schonwald v. Schonwald, Phib Eq., 215. If the defendant desired to introduce further evidence as to the value of his property and his ability to pay, it should have been offered before the question was decided. This he did not do, nor offer to do, until the decision was made and announced. This was not in apt time, and it rested in the sound discretion of the judge to re-open the case for addi *325 tional testimony .and debate, or to decline to do so. We ■cannot review the exercise -of this discretion. The point was for him and not for us to determine, and his action is oonclusive. It may not be improper in us, however, to say we see no indications of undue haste in the manner in which the issue was disposed of, whereof any just complaint ■can be made. 2, The order itself is said to be harsh in its mode of enforcing payment, and unauthorized by law. The allowance is not a debt within the meaning of the constitution, as contended before Us, for which imprisonment is not permitted. It is an order of a competent court, only to be enforced as are other judicial commands when necessary by process of attachment against the person. The power to award the process is inherent in the court, essential to the exercise of its jurisdiction and the maintenance of its authority. Without the ability to compel obedience to its mandates— whether the order be'to surrender writings in possession of a party, to execute deeds of conveyance, to pay money, as in ¡the present ease, or to perform any other act the court is competent to require to be done — many of its most important and useful functions would be paralyzed. The wilful ■disobedience of a lawful order is itself criminal, much more so than the non-payment of eosts adjudged against a prosecutor in a criminal action, and for which he may be imprisoned. Sta te v. Cannady, 78 N. C., 539. But inability to comply with an order, unlike the commitment for costs, is an answer to a rule to enforce it, and when made to appear, discharges from its obligation. The rule contained in the order in this case and intended to secure compliance, is but an anticipation of the one which would have been granted after the fact of disobedience was made to appear, and is not more severe or stringent in its terms. The payment of the money would render it wholly inoperative. While it is perhaps prema *326 ture in assuming that the order will be disregarded by the defendant, and every subsequent proceeding become necessary, we cannot on this account regard it invalid as unwarranted by law. No error. Affirmed.