Galland v. Galland

By the Court, Belcher, J.: The plaintiff, in January, 1868, obtained a judgment against the defendant, who was the husband of the plaintiff) but living apart from her, requiring him on the first day of [477]each month to pay to her, for the support of herself and infant child, the sum of eighty dollars. This judgment, on appeal to this Court, was affirmed. (Galland v. Galland, 38 Cal. 265.) The payments being in arrears since September, 1869, the plaintiff presented an application to the District Court, setting forth the failure and refusal of the defendant to pay, and praying that he might be attached and required to answer as for a contempt. Upon being brought into Court, the defendant, by his affidavit, answered that he had applied all his earnings, except what was required for his own personal use and that of an invalid daughter, towards the payment of the alimony adjudged to be paid; that he had no money or property except his personal clothing and a few articles of trifling value for his own personal use, the whole value of which was not more than seventy-five dollars, and that he was unable to make the payments required by the judgment.

After consideration the Court refused to adjudge the defendant guilty of a contempt, on the ground that he was unable to comply with the judgment, and thereupon dismissed the application. The ap¡)eal is from the order of the Court refusing to commit the defendant.

It is claimed by the appellant that the process sought is in the nature of an execution to enforce the performance of a duty by the defendant, and that she is entitled to it without inquiry as to whether he is able to perform or not; that his ability to perform is a question which can be inquired into only upon proceedings afterwards taken for his release.

From the earliest times Courts of equity have used the process of contempt for the purpose of compelling a party to- pay money or to perform some pecuniary obligation, which he may have been directed to pay or perform by the decree or order of the Court, as well as to enforce obedience to a decree, directing the performance of some other act, [478]such as the execution of deeds or the delivering up of documents.