The assignment of errors attacks the decree of the supreme court because (1) the court decided or assumed that defendant was in contempt for not complying with the order for temporary alimony. (2) In so holding or deciding, though defendant had not been cited to show cause why he should not be adjudged in contempt for not complying with the order. (3) (4) In affirming the action of the trial court refusing permission to defendant to answer to or make defense against the amended petition except on condition that he should comply in five days with the order for temporary alimony. (5) In affirming decree of the court awarding plaintiff $6,500 permanent alimony and attorney's fees and certain real property constituting the homestead of the parties.

The assignments of error are based upon a misunderstanding of the action of the trial court and the opinion of the supreme court. They proceed upon the supposition that he was not in culpable default to the law and the orders of the court,—a default after amplest opportunity to be heard and to contest every charge and claim against him.

The summons issued upon the original petition was served upon him by leaving a copy of it at his usual place of residence, as under the law it could be served. Okla. Stat. 1903, § 3938. It contained the notification that unless he answered by the 16th of June, 1903, the petition would be taken as true, and judgment would be rendered accordingly. He paid no attention to it. Yet there is more than the legal presumption that he received it, for on the day preceding there had been served on him a notice of the application for the temporary alimony and attorney's fees, the order to pay which makes the pivot of this controversy. He does not seem to have been sensitive to the charges against him, and, it may be, he thought his property was secure from the demands of the plaintiff by the conveyance to his son on the day before. The order upon the application was made May 23, 1903. He did not obey it. On the 21st of July, 1903, the amended petition was filed. It was served by publication, he having changed his residence to Nevada. He was notified to answer on or before September 4, 1903. He did not answer, but, on September 24, he appeared by counsel and submitted a motion to set aside service of summons, upon which motion the record shows the court made the following order: 'It is by the court ordered—be given leave to amend return on said summons.' He was subsequently personally served with an alias summons.

It required an answer to the petition on or by the 12th of March, 1904. An answer was not filed. On the 6th of April following a special appearance was entered and a motion made to set aside the summons and the alias summons on various grounds, which motion was denied after hearing. The defendant then offered to file an answer 'instanter,' and the offer was refused on the ground that he was in contempt of court for not complying with the order for temporary alimony. It was, however, ordered that he should be permitted to file an answer 'within five days on condition that he purge himself of said contempt by complying with said order within that time.' From the decree of the court it appears that its order was not so absolute but that he was given an opportunity to show why he had not complied with the order for alimony. Had the court the power to impose the conditions? Could the court have imposed any conditions or terms at all, and what was the limit of its power? If the court had a discretion it cannot be reviewed unless it was unreasonably exercised. And the court certainly had a discretion. We have seen that § 3933 of the statutes of the territory prescribes the result to a defendant for default in not appearing to be that the petition against him will be taken as true and judgment shall be rendered accordingly. If there is any modification of this in a suit for divorce it gives no rights to a defaulting defendant. Section 3983 of the Code of Civil Procedure of the territory provides that a defendant must demur or answer within twenty days after the day on which the summons is returnable, and § 3984 is as follows:

'The court, or any judge thereof in vacation, may, in his discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited by this act, or, by an order, enlarge such time.'

The question, then, can only be whether the court abused the discretion given to it by that section. Were the terms which the court imposed just?

The record demonstrates that the order for alimony was reasonable in itself and reasonable in relation to the means and obligations of defendant to plaintiff. According to plaintiff's petition, and presumably according to proof submitted to the court upon the application for alimony, of which defendant had notice, plaintiff was compelled by his cruelty to leave him with her child, then only a month old. She had no means to support herself and child. She was sick and unable to seek work. She was without means to carry on her suit for divorce. This was her situation as presented to the court, and defendant did not appear to deny it. He did not appear to deny that he owned real estate in the county where he lived of the value of $20,000, and in other places of the value of $14,000; that he had bank deposits of $10,000, and other personal property of the value of $15,000. He did not appear to deny that his cruelty—a cruelty of a peculiar kind—had driven her with her infant from his house. To this he was not sensitive. He was, however, not without anxiety for some of the consequences of the charge, and immediately set about to dispose of his property. After this he seemed to feel secure, either in misunderstanding of his rights, or in some perverted notion that he could evade or defy the law. At any rate, he did not appear and he did not obey the order of the court. Whether it could have been directly and expeditiously enforced against him may be doubted. He had put his property in the name of others. An execution, therefore, would have encountered that obstacle, and personal coercion might not have been possible, for certainly as early as July, 1903, he had changed his residence to Virginia City, Nevada. Besides, under the circumstances, plaintiff cannot urge that compliance with the order of the court could have been enforced in some other way than that adopted. It may be that the poverty which made the order of the court a necessity to her prevented her from enforcing the order, and the defendant may have deliberately planned to that end. And it may have appeared to the court at the hearing of April 5, 1904, that he had done so. It may have appeared to the court that his contumacy was without just cause or reason, and it would be continued to defeat the order of the court, though he should receive from its discretion a remission of the consequences of his default. Take the order of the court in its most absolute sense and, we say again, it was reasonable. Take it as described in the final decree and it was indulgent. It added another opportunity to be heard in addition to those defendant had been given.

The plaintiff in error, without any discussion of the section of the Oklahoma statutes which we have quoted, attempts to avoid their effect by the contention that he had never been adjudged guilty of contempt, and, even if he had been, the power of the court to punish him was limited by a statute of the territory to imposition of a fine or a sentence of imprisonment. He hence seeks to invoke the doctrine of Hovey v. Elliott, 167 U. S. 409, 42 L. ed. 215, 17 Sup. Ct. Rep. 841. The contention is based, as we have said, upon the assignment that the assignments of error are, upon a misconception of the action of the court. The principle of Hovey v. Elliott therefore is not applicable. Indeed, the point was reserved in that case whether one in contempt could be refused a right under a statute invoked by him as actor. But we need not stop to consider whether the reasoning, which we may say now we entirely approve, or the cases cited, carry the principle of the case to the point reserved, for we are of opinion that the pending case is not within the principle. The question here, we repeat, is the simple one whether, under the statute giving the power to a court to allow a defaulting defendant to answer 'upon such terms as may be just,' the order in controversy was within the power. And being of opinion that an affirmative answer is justified, the decree of the subpreme court of the territory is affirmed.

Mr. Justice Brewer dissents.