New Mexico. Armijo v. Armijo (1923) N. M., 217 Pac. 623. Tennessee. See GOING v. GOING (reported herewith) ante, 633.

In Myers v. Superior Ct. (Cal.) supra, it was held that the court had no power to punish one for contempt for failure to comply with a judgment for the payment of money, since the evidence showed that it was physically impossible for him to comply with the court's order. The court cited statutory provisions in that state that, when contempt consists in the omission to perform an act "which is yet in the power of the person to perform," he may be imprisoned until he shall have performed it, and that the disobedience of any lawful judgment, order, or process of the court constitutes contempt; and said that under the provisions of the statute it must appear from the warrant of commitment (1) that the thing ordered to be done is within the power of the person so ordered to perform, and (2) that such person, although he has it within his power so to do, has disobeyed the court's lawful order.

An order adjudging one guilty of contempt for failure to perform an act directed by the court to be performed. is void, as a basis for the imposition of punishment, unless it appears therefrom that it is within the power of such person to perform the act. Bakeman v. Superior Ct. (1918) 37 Cal. App. 785, 174 Pac. 911.

III. Contemner at fault. (Supplementing annotation in 22 A.L.R. 1259.)

See Ex parte Hamberg (Idaho) under the heading "Refusal of contemner to work," IV., infra.

IV. Failure to pay alimony. (Supplementing annotation in 22 A.L.R. 1260.)

In Cain v. Miller (Neb.) ante, 125, the court lays down the rule that, imprisonment being a serious and drastic remedy, no one should be committed to jail for refusal to pay temporary alimony, unless it is clear that the refusal is wilful and contumacious; that if the defaulting husband has, in good faith, no means, or ability to procure means, wherewith to pay the alimony, does not wilfully refuse to obey the order of the court, and has just or reasonable cause for his failure to do so, he may purge himself of the contempt by so showing, and in such a case is entitled to his discharge. In this instance, however, the release was denied, so that the above propositions were not essential to the conclusion reached.

And in Newsome v. Newsome (1923) 155 Ga. 412, 117 S. E. 90, it was held that the court had erroneously adjudged the husband to be in contempt for failure to comply with an order to pay alimony, where his sworn answer, which was undenied, and uncontroverted evidence introduced by him, showed his inability to comply with the order.

That inability on the part of a husband, which is not due to his own fault, to perform or comply with a judgment allowing alimony, constitutes a complete defense to a charge of contempt, is the rule laid down, also, in Armijo v. Armijo (1923) N. M., 217 Pac. 623.

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And the proposition that a husband may purge himself of contempt for failure to comply with an order to pay alimony, by presenting upon the hearing on proceeding for contempt any legitimate excuse he may have, including the fact that since the making of the original order he has become un

able to pay the alimony, is supported also by Ex parte Von Gerzabek (1923) - Cal. App. 219 Pac. 479.

It was held, however, in Ex parte Von Gerzabek (Cal.) supra, that in a proceeding to punish for an alleged contempt for failure to comply with an order to pay alimony, the finding of the court as to the ability of the contemner to comply with the terms of the order is conclusive on habeas corpus, and the prisoner cannot be discharged from custody, if the facts showing jurisdiction appear upon the record. It was said that the question of ability was one of fact which the court making the order has the right to determine; that it is generally held that it is not essential, as a condition precedent to the exercise of the power to punish for contempt for nonpayment of alimony, that the initiatory affidavit or complaint should allege the ability of the contemner to comply therewith, where the court has found that he has such ability, and that the only jurisdictional facts required to be stated in the affidavit are the making of the order and the disobedience thereof.

Where the evidence was conflicting as to the defendant's ability to earn a sufficient amount to comply with an order for payment of temporary alimony, but this amount was payable only in small instalments ($10 per month), and nothing had been paid for more than eight months after the order was made, it was held in Wheeless v. Wheeless (1924) Ga. —, 121 S. E. 241, that a finding was justified that the defendant had wilfully disregarded the order, and that the court might on that ground adjudge him guilty of contempt, although the evidence introduced on his behalf tended to show that on account of ill health he was unable to work or earn anything, and that he possessed no property.

And where the evidence was conflicting as to the ability of the husband to comply with an order requiring the payment by him of $20 monthly as temporary alimony, but the court adjudged him to be in contempt and

ordered payment of the alimony within sixty days, or, in default of payment, directed his imprisonment, it was held in Brown v. Brown (1923) 155 Ga. 722, 118 S. E. 196, that in view of the conflicting evidence there was no abuse of discretion in adjudging the husband in contempt, and in making the order for imprisonment unless the accrued alimony was paid within the time specified.

And in Bales v. Bales (1923) — Ga. 119 S. E. 635, although it is implied that inability of the husband to comply with an order to pay alimony would be a defense to contempt proceedings for failure to pay the same, it was held that as there was some evidence to authorize the allowance of the amount awarded by the court for alimony and ordered to be paid monthly, it could not be said as matter of law that the court erred in requiring payment of the amount specified as alimony, on the ground that the evidence as to the husband's property and his earning capacity did not authorize such an order.

In the reported case (GOING v. GoING, ante, 633), in which the former husband defended the contempt proceeding, brought for failure to comply with an order to pay alimony, on the ground that he had not wilfully disobeyed the order of the court and that he was unable to comply with such order, it was held that he should not be committed until compliance with the order for payment, where he was without property and was dependent upon the practice of his profession for performance of the decree for $150 per month alimony. The decision, however, was influenced by the special circumstances of the case, especially the fact that the former wife had secured employment, and, after the divorce was granted, had received property from relatives. It is not clear whether the court would have required the contemner to apply for modification of the decree, had this been permissible, before granting him relief in the contempt proceedings, because it was held that under the cir

cumstances of the case there was no power to modify the decree.

Refusal of contemner to work.

See other cases under similar subheading in annotation in 22 A.L.R. 1265.

In Ex parte Hamberg (1923) Idaho, 217 Pac. 264, where contempt proceedings were brought for failure of a husband to comply with an order requiring him to pay alimony in the sum of $30 per month, it was held that the court exceeded its power in adjudging that the husband should be indefinitely imprisoned for his failure to pay the stated amount of alimony, without finding that at the time of the sentence he was able to pay such sum, although the findings did show that the husband had not made sufficient effort to earn the necessary money to pay the alimony, and that he could have earned sufficient money had he made an effort to do so. The court cited a statute to the effect that when the contempt consists in the omission to perform an act "which is yet in the power of the person to per

form," he may be imprisoned until he has performed it, stating that this was the only statutory provision for an indefinite imprisonment in case of contempt; that, to justify the imprisonment of a person until he had performed an act, it must appear that the performance of the act was yet in his power; that in the case before the court there was not only no showing that it was within the power of the husband to pay the alimony, but it definitely appeared from the record that at the time of the hearing he was not able to pay the sum which the court directed he should pay in order to secure release from imprisonment. And the court quoted the doctrine that it is essential to the validity of a judgment directing imprisonment of a person until he complies with an order of the court that it should be found that he is able to comply therewith.

V. Burden of proof. (Supplementing annotation in 22 A.L.R. 1266.)

It is stated in the earlier annotation

on this question that it is well settled that where a person seeks to satisfy the court that his failure to obey an order or decree was due entirely to his inability to render obedience, the burden is on him to establish this fact. This rule is supported by the more recent decision in Armijo v. Armijo (1923) — N. M., 217 Pac. 623, where a husband sought to excuse failure to comply with an order to pay alimony on the ground of his inability to comply therewith, it being held that the failure of the husband to comply with an order allowing alimony is prima facie evidence of contempt, and that the burden rests upon him to prove his inability to comply therewith, where this is pleaded in justification of his failure.

And in Armijo v. Armijo (N. M.) supra, it was held that in view of the fact that the burden of proof rested on the husband to show affirmatively his inability to make the required payments of alimony (apparently $30 per month), the court was warranted in holding that his answer in the contempt proceedings for failure to pay such alimony failed to state a valid defense, where it was admitted by the answer that he owned a seven-room house, two vacant lots, and 8 acres of farming land, 4 acres of which were conceded to be the separate estate of the wife, but the value of the property or the price at which it could be sold was not shown.

VI. Rule in New York.

(Supplementing annotation in 22 A.L.R. 1266.)

In Staples v. Staples (1923) 206 App. Div. 196, 200 N. Y. Supp. 583, where the husband had beer imprisoned for more than nine months for failure to pay alimony at the rate of $60 per week, as directed in a final decree of divorce, and although, before the decree was rendered, he had for a time earned $75 per week, his previous salary as a chauffeur had been only $35 per week, and he was without means or property with which to pay the alimony which had been awarded, it was held that he had proved his inability to make the pay