The sun. [volume] (New York [N.Y.]) 1833-1916, 1902-11-22
HAS A RIGHT TO DEFENCE
when EVEN CONTEMPT or
COURT CAN'T TAKE Away.
Important Legal Point Decided In . New
Way In the Siblcy Divorce Case-Sib.
ley Didn't Pay Ills AiimOny and Ills
slide Wasn't Heard ~ the Trial.

The Appellate Division of the Supreme
Court Yesterday In the case of Siblev VS..
Sibey handed down decision which
denies the right Of a trial court to punish
a party in contempt by refusing TO allow
him to put in his defence.
According to l., Latin Kellogg of the
law firm of Kellogg 4 Rose. who appeared
for Richard c. Sibley, the appellant, the
decision il the first of its sort ever made
in this State and will overturn a custom
of trial judges.
Quite apart from the legal import ance
Of the decision, which Mr.. Kellogg says
has been eagerly awaited by members
of his profession, the decision is Of impor-
tance TO Richard {. Sbley who was formerly
prominent in the affairs of two Massachu-
sets distilling companies and who, accord
ing TO his wife. had an income of $4,000
wear. Sibley said he didn't get so
much, and at the time the trouble began
alleged that he was unable to pay $3.50 a
month alimony.
Mrs. Sibley, who was Miss Garlic We'll.
began an action for separation from her
husband two years ago. They had been
married sixteen years then. She is about
twenty-five years younger than Sibley, who
is said 10 be SO years old. She alleged
cruel treatment on his part. said he had
struck her repeatedly at their home and in
hotels had refused to lot her read Gibbons
Decline and Fall Of the Roman Empire,
and practised gymnastics in scanty attire
at the rear window out Of pride Of his own
form.
Sibley brought suit for divorce against
his wife and an action for alienation OF his
wife's affections against George Stuart
Smith. His suit against his wife was held
up by an order in the original suit, COM
pellng him to pay her $3.50 month alimony
and the action against Smith has not como
to trial.
Sibley didn't pay the alimony and was
adiudged in contempt. He appealed and
the Appellate Division decided that he
could appear by counsel in the suit. but
could merely cross-examine. He was not
allowed 10 put in any evidence or any an
swer
Mrs Sibley won on the trial Of the case,
and Sibley appealed again: The decision
on this appeal was handed down yesterday.
II was written by Justice Laughlin and
was concurred in by the four other JUS
tees. In part il follows:
II Is doubtful whether the evidence y
sufficient TO sustain the judgment The
February. .isse, and lived together until the
l-t day of November, 1905. but. according
to tl" plaintiffs testimony, they ceased 70
cohahit after the spring Of 1895. The only
evidence concerning the conduct oil the de-
PENDANT toward the plaintiff subsequent to
,he iStG day Of s'G i IL un
self. Her testimony with reference" TO the
period prior 10 that time shows different
character on the par, OF the defendant toward
her and az 70 many oil the incidents, but
not as 10 any assault, she was corroborated
by nurse who was employed by them durin e
the months OF September and October. 1855.
and BY her ladi.'s maid who was in her en-
ploy from March, 1894. until Feb. 10. 1895,
the defendant on any OF these occasions.
that she Soon forgnv" his conduct and in
the main, they lived happily together. Great
affection was manifested by each for the
other in their cores pondenc" throughout
their married lifc. In brief. II i, be possible
10 waive and Condone offences OF cruel and
inhuman conduct without actual cobalt ita- :
ton. the eyidenc" would seem 10 require
That infcTenc" in this case
question at this time, for a new. tripl must
lee ordered on another ground, and additional
evidence may be introduced OF such a charac-
ter as to materially change the aspect OF the
The Judgment deprives the appellant Of
property and contract property rights. and
his exceptions fairly present the question as
out due process Of Law within the meaning
Constitution The defendant did not ins,i-
tute the action and he did not ask that 1t be
tried The plaintiff forced IL 70 trial against
his will and a Judgment resulted which de-
privcd him OF property without his having
been heard in defence of his rights This
the supreme Court of the United States has
quite recently unanimously decided may not
b" done liiovey vs.. Elliott, i87 I $, +o9i
Prior 10 that decision II had been declared by
numerous adjudicBtions in this jurisdiction
that IN an equity suit the answer Of de-
PENDANT who has been adudged guilty OF
Contempt in failing TO obey the mandate, of
vs.; Walker. 5? ~ Y. 202. &c.
=, In the exhaustive opinion delivered by
Mr.. Justice White in Hovey VS.. Elliott the
decision Of our Court Of Appeals in Walker
vs.. Walker Il cons 'dered, and. IN effect. over
ruled The doctrine OF the cases in our
court TO which reference has been made is not
reconcilabla with the decision OF the supreme
Court in Hovey VS.. Elliott There is no
room for tinction. and. ~ being a Federal
question, II is our duty to follow the Supreme
Court.
The Judgment must therefore be reversed
and new trial granted. but without costs