Opinion
04-03-1888
FAIRCHILD v. FAIRCHILD.
A. Walling, Jr., for the motion.
Bill for divorce; on motion to attach for contempt.
A. Walling, Jr., for the motion.
The order issued requiring the defendant to show cause why he should not be attached as for contempt in not paying the alimony and counsel fee which he had been directed to pay by the former order, having been served on the solicitor of the defendant, but not on the defendant personally, because of his absence from the state, the question is whether, under the rules and practice of the court, it can proceed in the matter or not. While the practice is to take no steps in such cases without a personal service when that can be had, yet, if the defendant absents himself, and renders such service impossible, the court will not be balked in its proceedings, and prevented from making a final order or decree, in case service be made upon the solicitor of the defendant who has appeared in the case, and represented him, or, in case there be no solicitor, the order or notice be left with the clerk of the court. Such has been the established practice, I infer, for a long period of time. Rider v. Kidder, 12 Ves. 202; De Manneville v. De Manneville, Id. 203. While, in such case, the court is solicitous in protecting every right of the defendant, and also to avoid the commission of any wrong against him, yet, when the defendant puts it beyond the power of the court to make further inquiry, the end of such solicitude has been answered, and every principle which either equity or justice demands, satisfied. I will advise an order according to the prayer of the petition.