State ex rel. Ditmar v. Ditmar

The opinion of the court was delivered by Dunbar, J. On the 3d of May, 1895, the respondent procured a divorce from the appellant and in that case the court distributed the property between the respondent and appellant, and it was further decreed that appellant should also pay off the mortgage of $500 which the parties had executed upon the homestead, which the court decreed to respondent. In May, 1897, the mortgage not having been paid off, upon the petition and affidavit of the respondent an order was issued to show cause why the appellant should not be punished for contempt. Upon the trial of this cause the court found that the defendant had the ability and means to fully pay and satisfy the said mortgage, a fine of $1 and costs was imposed, and it was ordered that the defendant stand committed until the same was paid. It was also ordered and adjudged that the defendant (appellant here) should pay on or before the first day of October, 1897, the balance due of the $500 mortgage. [326] From this judgment an appeal was brought to this court. The main contention in this case is that, inasmuch as the payment of the mortgage was secured by a lien on the property of the appellant, the enforcement of the lien was the exclusive remedy of the respondent. Several cases are cited by the appellant to sustain this contention, but we think they utterly fail to do so. The most of the eases bear no relation Whatever to the question under discussion. The case of Andrews v. Andrews, 69 Ill. 609, seems, from the syllabus, to' hold that where a decree is made a lien on land it is not proper to’ award an attachment for contempt for failure to pay the amount awarded. An investigation of this case, however, shows that this question was not really decided in the case, but that this was an appeal from the decree in the divorce case, and the judgment was reversed for the reason that the decree required the payments to be made in rapid succession, and because the solicitor was allowed an exorbitant fee. It is true the court says: “We see nothing in this case rendering it necessary to call this power [referring to an attachment] into action, as the decree in behalf of complainant was made a lien on the land.” The court, proceeding, says: “ The amount allowed by the court is so largely out of proportion to the service rendered, that we cannot but regard it as oppressive upon the defendant, in view of the amount of alimony allowed.” The court then proceeds to' hold that the whole decree was excessive, and reversed the cause with instructions to enter a decree in conformity with the opinion of the supreme court. In Blake v. People, 80 Ill. 11, also cited by the appellant, it is especially held that the court has power, either by sequestration of real or personal estate [327] or by attachment against the person, by fine or imprisonment, or both, in the discretion of the court, to enforce its decrees, and it is held that these remedies are cumulative. It is true that in this case the court says that the spirit of our constitution forbids that the pecuniary inability of the party, not resulting from his fraudulent conduct to produce that condition, be punished as a contempt by imprisonment, citing O’Callaglian v. O’Callaghan, 69 Ill. 552. And they further say that “ Where the neglect or refusal to perform the decree is not from mere contumacy, but from the1 want of means, the result of misfortune, not induced by any fraudulent conduct on the part of defendant, the party will be compelled to adopt some mode other than imprisonment, to enforce the decree, consistent with the practice in the courts, either by execution or other final process, or by sequestration of real or personal estate, or by the exercise of such other powers as pertain to courts of chancery, and which may be necessary to the attainment of justice.” It will be conceded that, if it is out of the power of the party against whom the decree is entered to comply with its conditions, and this showing is made to the court, he has purged himself of the contempt. But the case cited is authority on the proposition that the remedies are cumulative, and that where other remedies exist, and the party has contumaciously refused to obey the decree of the court, he may be punished for contempt. In the case at bar, after reading the testimony, we are not prepared to say that the appellant was not able to satisfy this mortgage, and believe that the court found the facts as they should have been found, viz., that he was able to satisfy the same. The evidence shows that the appellant here had borrowed some $1,200 since this decree had been entered, and, if he was able to borrow money to pay his own debts or to invest in property, he was evi [328] dently able to obtain tbe money to meet tbe demands of tbe decree. There are several other points raised in this case, but we think they are without substantial merit. A good deal is said concerning the fact that an attachment did not issue against the person of the appellant, but the appellant appeared in the action, thereby waiving the necessity of an attachment. An attachment is not for the benefit of the defendant in the action, but for the benefit of the other party. As far, as the question of demand was concerned, if the court believed the testimony of the respondent, a demand was unnecessary, for the appellant had stoutly asserted that he would never obey the decree. We think there is no merit in the appeal, and the judgment will be affirmed. Soott, C. J., and Anders, Gordon and Bjbavis, JJ., concur.