Opinion
Submitted May term, 1948.
Decided September 3d 1948.
1. In the absence of a request for an oral hearing, affidavits may be used in contempt proceedings brought by the wife against the husband.
2. The record indicates that the matter was submitted on affidavits by consent of counsel. Appellant cannot therefore be heard to object to this for the first time on appeal.
On appeal from the Court of Chancery.
Mr. Walter S. Keown, for the petitioner-respondent.
Mr. Edwin G. Scovel, for the defendant-appellant.
The only question presented on this appeal is whether it was proper for the Court of Chancery to adjudge the husband in contempt and order his incarceration without hearing oral proofs. It is asserted that "at the hearing the solicitor for the appellant requested respondent's solicitor to produce oral proof."
The record does not support this statement. In the memorandum filed by the advisory master the following paragraph appears:
"The defendant failed to appear personally in response to the alias order, and the court being advised by his counsel that he would not appear, the issue was submitted upon affidavits."
The original petition of appeal contained no ground as alleged herein and it was not made or advanced until set forth in the amended petition of appeal.
In the absence of a request for an oral hearing, affidavits may be used in cases of this nature. Test v. Test, 131 N.J. Eq. 197; Isserman v. Isserman, 138 N.J. Eq. 140.
Since the record indicates that the matter was submitted on affidavits with the consent of counsel, the appellant cannot be heard to object for the first time on appeal.
The decree below will be affirmed.
For affirmance — THE CHIEF-JUSTICE, BODINE, DONGES, HEHER, COLIE, WACHENFELD, EASTWOOD, BURLING, JACOBS, WELLS, DILL, FREUND, McLEAN, SCHETTINO, JJ. 14.
For reversal — None.