Edward Douglass White

“ It would seem extraordinary that a party who may not be able to pay the costs of a refused motion should be therefore absolutely stopped from asserting his rights. At the same time, if the practice be established, it would not be for me to alter it. Now, although it may be generally true that a party in contempt cannot be heard to make a motion, he is nevertheless permitted to be heard upon a motion to get rid of that contempt,-a case for which, so far as I can see, Lord Bacon's ordinance makes no provision. ”

“ To say that courts have inherent power to deny all right to defend an action, and to render decrees without any hearing whatever, is, in the very nature of things, to convert the court exercising such an authority into an instrument of wrong and oppression, and hence to strip it of that attribute of justice upon which the exercise of judicial power necessarily depends. ”

“ There is no distinction in principle between determining a cause upon issues not raised by the pleadings in the actual absence of the party, and rendering a decree by refusing to permit a defendant to be heard in his defense or to consider the merits of a sufficient defense, and, indeed, by striking the pleading containing such defense from the files. ”

“ Whether, in the exercise of its power to punish for a contempt, a court would be justified in refusing to permit one in contempt to avail himself of a right granted by statute, where the refusal did not involve the fundamental right of one summoned in a cause to be heard in his defense, and where the one in contempt was an actor invoking the right allowed by statute, is a question not involved in this suit. ”

“ Certain it is that in all the reported decisions of the chancery courts in England no single case can be found where a court of chancery ever ordered an answer to be stricken from the files, and denied to a party defendant all right of hearing because of a supposed contempt. And in the American adjudications, while there are two cases-one in New York and the other in Arkansas-asserting the existence of such power, an analysis of these cases and the authorities upon which they rely will conclusively show the erroneous character of the conclusions reached. ”

“ We have no quasi litis contestatio with us because, unless the defendant comes and contests, there is no jurisdiction to a court of conscience, for, unless the party confesses the fraud or corruption of which the court inquires, or it be proved upon him, there is no sufficient ground for a decree, which cannot be without contestatio litis. ”

“ So that this clause, in effect, affirms the right of trial according to the process and proceedings of the common law.'
Can it be doubted that due process of law signifies a right to be heard in one's defense? If the legislative department of the government were to enact a statute conferring the right to condemn the citizen without any opportunity whatever of being heard, would it be pretended that such an enactment would not be violative of the constitution? ”

“ The demonstration of the unsoundness of the contention that courts of equity have claimed and exercised the power to suppress an answer, and thereupon render a decree pro confesso, which results from the foregoing review of the authorities, is strengthened by the reflection that, if such power obtained, then the ancient common-law doctrine of 'outlawry,' and that of the continental systems as to 'civil death,' would be a part of the chancery law,-a theory which could not be admitted without violating the rudimentary conceptions of the fundamental rights of the citizen. ”

“ It cannot be doubted that, where a judgment is rendered without the issuance and service of summons against a party who did not enter an appearance, the court rendering it is without jurisdiction to do so, and it can be assailed as void whenever presented as a muniment of right against another. ”

“ A party who is in contempt may at any time clear his contempt. At the time the lord chancellor's order was made, the defendant was not in contempt. That order is still in full force, and I cannot understand how the circumstance that the defendant had subsequently come in contempt can give to the plaintiff the right to postpone the trial of this action, which, to a certain extent, he is under an obligation to try. The defendant may, perhaps, clear his contempt before the trial ”

“ However, there is no such practice. * * *
'The court punishes the defendant's default in refusing to answer by giving to the plaintiff the benefit of a decree upon the bill as confessed; but there the advantage stops, and, when the decree is once pronounced, the subsequent duty of the court and its officers is to execute that decree in the ordinary way. Accordingly, no authority is to be found in support of the proposition that, upon a decree taking the bill pro confesso, and directing an account, the account may be prosecuted ex parte. ”

“ The court of appeals of New York held that the judgment was not binding upon Riggs & Co. or the surviving members thereof, because, as it was rendered in a contempt proceeding after striking out the answer and refusing to consider the testimony filed in the cause, the judgment was beyond the jurisdiction of the court, as the power of courts of the District of Columbia to punish for contempt was restricted by the provisions of section 725 of the Revised Statutes. Hovey v. Elliott, 145 N. Y. 126, 39 N. E. 841. ”

“ If such authority exists, then, in consequence of their establishment, to compel obedience to law, and to enforce justice, courts possess the right to inflict the very wrongs which they were created to prevent. ”

“ Here, when his cause is called, if the other side insist that he hath not cleared his contempt, nor actually surrendered his body to the warden of the Fleet, he must do both these things before his cause can be proceeded in."
The statement in the opinion as to the practice of the court of chancery in England does not, as we have shown, accord with the authorities, and it is equally clear that the citation from the work of Baron Gilbert does not justify the conclusion for which it was cited. ”

“ And it is so with us, that if the whole process of the court be spent, and the defendant never appears, you can never have a decree, for you can never make any proofs against an absent person who is never brought into contest, and there is no foundation for a decree without confession or proofs. However, the plaintiff has the benefit of the sequestration, which answers to the primum decretum.'
While by Act 5 Geo. II. c. ”

“ Rep. 97, a bill was filed by mortgagees for the purpose of enforcing their security. The defendant put in his answer, and also filed a bill in the cause of Ernest against Partridge (to which Fry and several others were made defendants) for the purpose, among other things, of setting aside the mortgage security. A demurrer being allowed to this bill, Ernest afterwards filed in Fry against Ernest a concise statement, containing in substance the same averments as those in Ernest against Partridge, and exhibited interrogations for the examination of the plaintiff Fry. ”

“ Evans, 16 Q. B. 162, the main question for consideration was whether a sequestration ordered by a bishop was a proceeding simply in the nature of a distress to compel residence, or altogether or even in part in poenam for previous nonresidence. The court said (page 171) :
'If it be the latter, then the bishop ought to have given the incumbent an opportunity of being heard before it was issued ”