with an order made pendente lite directing him to pay counsel fees to the plaintiff, or until the order has been reversed or annulled on appeal: Winter v. Superior Court, 70 Cal. 295, 11 Pac. 633. There has been a conflict as to whether the court may strike the defendant's answer from the files and proceed with the case ex parte. In support of the exercise of the power we find in Walker v. Walker, 82 N. Y. 260: "That case (Rice v. Ehele, 55 N. Y. 518) holds that the pleading may not be stricken out, save on notice to the party; and that the exercise of this power was legitimate was recognized by Marcy, J., in Birdsall v. Pixley, 4 Wend. 196. The power seems to have been exerted or recognized by the supreme court in several instances, without question made by appeal: Farnham v. Farnham, 9 How. Pr. 231; Barker v. Barker, 15 How. Pr. 568; Ford v. Ford, 41 How. Pr. 169. We are brought to the conclusion that there has long been exerted by the court of chancery in England the power to refuse to hear the defendant when he was in contempt of the court by disobeying its orders, and that that power was in the courts of chancery of this country." In McCrea v. McCrea, 58 How. Pr. 220, it was laid down that the only power possessed by the court to strike out a pleading, on such a motion, was contained in sections 538, 545 and 546 of the code, and an application by the wife to that effect was not within those sections, notwithstanding the husband neglected and refused to comply with an order to pay a certain sum for her expenses of the suit. We are more inclined to think that the inherent power of the court to enforce its orders would both enable and justify it in placing such an embargo on a defaulting defendant. We have merely referred to these modes, en passant, as they lead up to the subject for our discussion, and the student is in a more appropriate condition to consider the mode we specially present, when he has his knowledge of other modes refreshed by even the cursory glance we are enabled to give at the parallel remedies.

II. Attachment for Contempt.

Notwithstanding the existence of so many other remedies, the most favored is that of attaching the person of the defaulter for contempt. Attachment is a criminal process in form only; in substance it is a civil execution issued against a party in a civil action for disobeying an order of the court for the benefit of another party to the cause: Ex parte Hardy, 68 Ala. 303; Ex parte Thurmond, 1 Bail. 605. In Burbach v. Milwaukee Electric Ry. & Light Co., 119 Wis. 384, 96 N. W. 829, it is defined as "a writ issued by a court of record, commanding the sheriff to bring before it a person who has been guilty of contempt of court, either in neglect or abuse of its process or of subordinate powers: 3 Blackstone's Commentaries, 280; 4 Blackstone's Commentaries, 283." In Morrison v. Lester, 15 Hun, 538, the court was at considerable pains to distinguish between the writ of capias ad satisfaciendum and an attachment, and describes the attachment as a criminal process in form issuing in the name of the people against the supposed offender, and granted in theory on account of some supposed contempt. Its object is to bring the party against whom it is issued into court, and the duty of the officer is to have such person in court at the return day.

Having thus seen what an attachment is, we proceed to apply it to the contempt of disobedience to comply with an order for the payment of alimony.

The power of the court to deal with the enforcement of orders for the payment of alimony by attachment for contempt is founded both on its inherent authority as well as on statute: Lyon v. Lyon, 21 Conn. 185; Tolman v. Leonard, 6 App. D. C. 224; Lane v. Lane, 27 App. D. C. 171; Van Dyke v. Van Dyke, 125 Ga. 491, 54 S. E. 537; Welty v. Welty, 195 Ill. 335, 88 Am. St. Rep. 208, 63 N. E. 161; Cavenaugh v. Cavenaugh, 106 Ill. App. 209; State v. King, 49 La. Ann. 1503, 22 South. 887; Carnahan v. Carnahan, 143 Mich. 390, 114 Am. St. Rep. 660, 107 N. W. 73, 8 Ann. Cas. 53; Coughlin v. Ehlert, 39 Mo. 285; Reese v. Reese, 46 App. Div. 156, 61 N. Y. Supp. 760; State v. Cook, 66 Ohio St. 566, 64 N. E. 567, 58 L. R. A. 625; Hutchinson v. Canon, 6 Okl. 725, 55 Pac. 1077; Ex parte Latham, 47 Tex. Cr. 208, 82 S. W. 1046; Curtis v. Gordon, 62 Vt. 340, 20 Atl. 820; Andrew v. Andrew, 62 Vt. 495, 20 Atl. 817; In re Cave, 26 Wash. 213, 90 Am. St. Rep. 736, 66 Pac. 425.

In Ex parte Latham, 47 Tex. Cr. 208, 82 S. W. 1046, the question of jurisdiction was elaborately discussed by the court without a scintilla of doubt as to the power to punish for contempt. The facts were that the husband had been committed to jail by the court for contempt, which consisted of his refusal to comply with a decree in divorce, such decree involving the adjustment of rights in connection with the community property. He was brought up on habeas corpus, his contention being that though the judgment in the divorce suit was actually deposited with the clerk when the attachment process was issued, it was not entered for two days thereafter, while the court was still in session. The granting of the writ of habeas corpus was subsequent to the completion of the record proceedings in the divorce suit. The court first disposed of the suggestion that the adjustment of the community property rights was a debt and showed the authority to make disposition of such property between the spouses: Boyd v. Boyd, 22 Tex. Civ. App. 200, 54 S. W. 380; Moor v. Moor, 24 Tex. Civ. App. 150, 57 S. W. 992; Long v. Long, 29 Tex. Civ. App. 536, 69 S. W. 428. "If it was competent for the court to make the partition of the community property, and to appoint a trustee to take charge thereof, . . . . then it was competent, and the court was authorized, to require appellant to turn over the community property conceded then to be in his hands to said trustee, for the purpose of distribution under the order of the court. And if the court had the power to do this, it must be conceded that it was authorized to enforce its decree by a contempt proceeding: Ex parte Tinsley, 37 Tex. Cr. 517, 66 Am. St. Rep. 818, and authorities there cited, 40 S. W. 306." As to the main contention that the nonentry of the judg ment deposited with the clerk should prevent the attachment issuing, it was held that as the court was still in session, it had, unquestionably, the right to enter it later. "It is said, however, that the judgment is too indefinite, and does not find the facts constituting the contempt. We do not agree to this contention. We can look to the moving papers and the whole judgment in order to ascertain in what the adjudicated contempt consisted: Ex parte Smith, 40 Tex. Cr. 179, 49 S. W. 396. A reference to the judgment shows very succinctly and definitely the facts adjudicated by the court which constitute the contempt." The habeas corpus was denied.

In a comparatively recent case, Sebastian v. Rose, 135 Ky. 197, 122 S. W. 120, it was clearly affirmed that divorce proceedings in that state were within the exclusive cognizance of courts of chancery jurisdiction, and that such courts have, as incident thereto, the power

to enforce obedience to their decrees by summary mode, attachment and imprisonment.

In an older case, Ballard v. Caperton, 2 Met. 412, the court said: "This power belongs of necessity to the court, that its judgments and orders may be carried into execution and not remain powerless, and that its dignity and right to respect may be preserved by prompt punishment for contumacy."

When the statute provides exclusive methods for enforcing a decree, the court will not commit for contempt for not signing an alimony bond, when there is no power conferred by the section to that effect, as by sections 1772, 1773 of the New York Code of Civil Procedure: Stewart v. Stewart, 127 App. Div. 724, 111 N. Y. Supp. 734; People v. Walsh, 132 App. Div. 462, 116 N. Y. Supp. 839.

The failure of a defendant to pay promptly the alimony which he is ordered to pay by a judgment does not carry with it a contempt of court per se and ipso facto as the result of such failure; Otillio v. Otillio, 119 La. 965, 44 South. 799.

In Gray v. Gray, 127 Ga. 345, 56 S. E. 438, it was held that a failure or refusal to comply with an order of court requiring the payment of alimony and attorney's fees is a continuing contempt, and the court may enter a judgment that the party so refusing may be imprisoned until he shall comply. In such case the time of imprisonment is not within the limitation of the statute relative to a single act of contempt that the duration of imprisonment must not exceed twenty days. This followed the decision in Tindall v. Nisbet, 113 Ga. 1114, 39 S. E. 450, 55 L. R. A. 225.

As we have said, the procedure by attachment of the person is that most generally adopted where such person neglects or refuses to comply with the order of the court for the payment of alimony: Murray v. Murray, 84 Ala. 363, 4 South. 239; Casteel v. Casteel, 38 Ark. 477; Galland v. Galland, 44 Cal. 475, 13 Am. Rep. 167; Lyon v. Lyon, 21 Conn. 185; Lewis v. Lewis, 80 Ga. 706, 12 Am. St. Rep. 281, 6 S. E. 918; Becker v. Becker, 15 Ill. App. 247; Twing v. O'Meara, 59 Iowa, 326, 13 N. W. 321; Lockridge v. Lockridge, 3 Dana, 28, 28 Am. Dec. 52; Russell v. Russell, 69 Me. 336; Foster v. Foster, 130 Mass. 189; Filer v. Filer, 77 Mich. 469, 43 N. W. 887, 6 L. R. A. 399; In re Fanning, 40 Minn. 4, 41 N. W. 1076; Carper v. Carper, 94 Miss. 498, 136 Am. St. Rep. 588, 48 South. 186; State v. Second Judicial District Court (Mont.), 36 Pac. 757; Isaacs v. Isaacs, 61 How. Pr. 369; Ryer v. Ryer, 67 How. Pr. 369; Pritchard v. Pritchard, 4 Abb. N. C. 298; Compton v. Compton, 11 App. Div. 923, 97 N. Y. Supp. 618; Zimmerman v. Zimmerman, 113 N. C. 432, 18 S. E. 334; Sheafe v. Sheafe, 36 N. H. 155; O'Haley v. O'Haley, 31 Tex. 502; Andrew v. Andrew, 62 Vt. 495, 20 Atl. 817; Purcell v. Purcell, 4 Hen. & M. 507; State v. Smith, 17 Wash. 430, 50 Pac. 52; State v. Ditmar, 19 Wash. 324, 53 Pac. 350; Staples v. Staples, 87 Wis. 592, 58 N. W. 1036, 24 L. R. A. 433. And the same procedure can be followed in temporary as in permanent alimony: Ex parte Joutsen, 154 Cal. 540, 98 Pac. 391; Goss v. Goss, 29 Ga. 109; Russell v. Russell, 69 Me. 336; Haines v. Haines, 35 Mich. 138; Wood v. Wood, 61 N. C. 538; Ex parte Davis, 101 Tex. 607, 111 S. W. 394, 17 L. R. A., N. S., 1140; and where the money is to be paid to a third person: Ex parte Gordan, 95 Cal. 374, 30 Pac. 561.

But where the payment was for the attorney's fee, and the decree had been made a lien on the husband's real estate, attachment did not lie: Andrews v. Andrews, 69 Ill. 609.

The fact of an appeal being pending does not free the husband from liability to attachment: Dwelly v. Dwelly, 46 Me. 377; or a motion to set aside the judgment: Knauer v. Knauer, 121 App. Div. 748, 106 N. Y. Supp. 491.

Under the New York Code of Civil Procedure, section 1773, it is provided that it must appear presumptively that payment of alimony cannot be enforced by sequestration or the statutory remedies before an order to show cause will be granted against the husband; but where the court is satisfied that such sequestration or other statutory remedy would be futile, they may grant the order without: Uttal v. Uttal, 140 App. Div. 255, 125 N. Y. Supp. 2. But it is necessary to show that the sequestration proceedings would be unavailing or the attachment will not be granted: Conklin v. Conklin, 125 App. Div. 280, 109 N. Y. Supp. 189.

Inasmuch as the contempt for nonpayment is not of the class of contempts committed before the eyes of the court, the proceedings must be regularly founded on proper affidavits and notice: In re McCarty, 154 Cal. 534, 98 Pac. 540.

IV. Notice to the Defendant and Demand.

An attachment is never granted as a matter of course. The courts, as in all cases where the liberty of the subject is involved, exercise a watchful care, that in a civil action all the conditions which would permit of the defendant's imprisonment have been exhausted. For that reason there must be proof both of his notice of the decree or order and of a demand for payment under it. In New York the practice is to serve him with a certified copy of the judgment and then make the demand, on refusal of which a case for an attachment has been made out. The reason for this is given in Edison v. Edison, 56 Mich. 185, 22 N. W. 264, and Ryckman v. Ryckman, 32 Hun, 193, that he could not, under the code provisions, be punished for a contempt simply for not paying the alimony; the court requires the foundation for the contempt of its order, that the defendant, knowing of such order, has refused on demand to comply with it.

The courts have almost uniformly recognized a due demand as a condition precedent to their action by attachment: Potts v. Potts, 68 Mich. 492, 36 N. W. 240; Ervay v. Ervay, 120 Mich. 525, 79 N. W. 802; Delanoy v. Delanoy, 19 App. Div. 295, 46 N. Y. Supp. 106; Flor v. Flor, 73 App. Div. 262, 76 N. Y. Supp. 813; Compton v. Compton, 125 App. Div. 859, 110 N. Y. Supp. 775; except in such cases as a contumacious declaration that he did not intend to pay, in which case the demand was held unnecessary: Shaffner v. Shaffner, 212 Ill. 492, 72 N. E. 447; State v. Ditmar, 19 Wash. 324, 53 Pac. 350; or where the demand was made by some person who did not show the husband that he was authorized to make the demand: Conklin v. Conklin, 113 App. Div. 743, 99 N. Y. Supp. 310.

It is necessary that the notice or order should be served upon the husband in general, by a copy of the order certified or otherwise, or in accordance with the rules of practice or the statutory provisions: Lyon v. Lyon, 21 Conn. 185; Ryckman v. Ryckman, 32 Hun, 193; Carr v. Carr, 64 Misc. Rep. 435, 118 N. Y. Supp. 625; but the want of such service may be cured by his subsequent appearance: State v. District Court, 42 Minn. 40, 43 N. W. 686; and a committal without notice

may be ordered: Isaacs v. Isaacs, 61 How. Pr. 369; and where the order to pay alimony has been personally served, service of the order to show cause on his attorneys was held sufficient: Weich v. Weich, 59 Misc. Rep. 238, 110 N. Y. Supp. 201.

It is not necessary that the notice of the proceedings be given before the issue of the attachment: Ex parte Petrie, 38 Ill. 498. It must not be wrongly inferred, however, that the demand need not be made. The case last named deals only with notice of the process. An order to show cause served on the husband's attorneys is insufficient: Goldie v. Goldie, 77 App. Div. 12, 79 N. Y. Supp. 268; Keller v. Keller, 100 App. Div. 325, 91 N. Y. Supp. 528, 103 App. Div. 609, 93 N. Y. Supp. 1136; although it was held in Zimmerman v. Zimmerman, 26 Abb. N. C. 366, 14 N. Y. Supp. 444, that in the absence of code provisions as to mode of service, such service was good if made on the husband's attorneys before final judgment had been entered.

An attachment may be said never to issue on an ex parte application, the defendant being entitled to be heard; and where the power to grant the order to show cause is by the creating statute given to the court, such order cannot be made by a judge: Weich v. Weich, 59 Misc. Rep. 238, 110 N. Y. Supp. 201. In Stahl v. Stahl, 59 Hun, 621, 12 N. Y. Supp. 854, the decree provided for an ex parte attachment. The court said: "Out of a multitude of points presented on behalf of the appellant one alone seems to be forcible, and that is that granting an ex parte application for process against the person of the defendant for nonpayment of alimony was not authorized by law, and could not be sustained, even when based on a decree which provides that an application may be made ex parte for such process if the defendant fails to obey its mandates. The application, under such circumstances, must necessarily rest upon the affidavit of the plaintiff or her attorney as to the nonpayment of the alimony. That, however, is not conclusive evidence, though prima facie sufficient to warrant an order to show cause, and does not become so until after the return of the order, and the omission of the party proceeded against to deny or explain." The authorities are all one way that the proceeding must be upon notice, and in process against the person, audi alteram partem is the almost invariable rule, and, we may add, in our opinion the correct rule: French v. French, 4 Mass. 587; Slade v. Slade, 106 Mass. 499; Edison v. Edison, 56 Mich. 185, 22 N. W. 264; Isaacs v. Isaacs, 61 How. Pr. 369; In re Sims, 57 Hun, 433, 11 N. Y. Supp. 211. In Illinois, however, the court has so pronounced itself as to create the impression that the wholesome rule of hearing the other side may at times be violated. It is not so, however, when the decisions are carefully read. In Ex parte Petrie, 38 Ill. 498, the court held the proceedings were not irregular because no notice was given the petitioner. "We recognize the principle," said the court, "that it is of the essence of all convictions or adjudications that the party accused should have an opportunity to be heard in his defense. But that principle does not controvert the regularity, in that regard, of this proceeding, for we find that the petitioner was given that opportunity in as ample a manner as was consistent with the nature of the case. It cannot be said that a party has no proper notice of a proceeding against him, merely because the first intimation he receives of it is by an arrest under a process of the court. In the case of an ordinary writ of capias ad respondendum, which is the first process in a cause under the proper state of facts, the very first notice the defendant receives of the proceeding is by an arrest under the writ. Yet it has never been sup