Ex parte Spencer

Fox, J. — This is an application for discharge upon habeas corpus. The return to the writ shows, that the respondent is imprisoned under an order of the superior court of the city and county of San Francisco, made upon conviction for contempt, in refusing to obey an order of the court theretofore made, requiring him “ to pay the sum of twenty-five dollars per month as alimony,” to Josephine M. Spencer, his former wife.

From the return and records introduced, it appears that on August 25, 1884, in the suit of Thomas M. Spencer, plaintiff, v. Josephine M. Spencer, defendant, a decree of divorce was granted to the defendant, upon her cross-complaint; the custody of a minor child was awarded to her; the household goods and personal property at the residence occupied by her were set apart to her; and it was further decreed that the plaintiff should pay to the defendant, “ as permanent alimony, the sum of fifty dollars per month, on the first day of September, 1884, and [462]on the first day of each and every month thereafter.” On May 13, 1887, on the motion of plaintiff, this decree was modified and the amount of alimony so fixed reduced to twenty-five dollars per month. In December, 1888, petitioner having failed for some time to make payment, he was cited to appear before the court and show cause why he should not be punished for contempt. On the return day of that citation the defendant, this petitioner, was examined under oath touching his ability to pay the moneys so required of him, and his reasons for not paying the same, and the court found that there was then due and unpaid the sum of $225; that demand therefor had been made; that he had been, and was, abundantly able to pay the same; and that he had permanent and lucrative employment. Upon these findings the court adjudged him guilty of contempt, and ordered that he be committed to the custody of the sheriff, and confined in the county jail until he obeyed the said order and paid the said sum of $225, so found due and unpaid under said decree, or until discharged according to law.

These proceedings seem to have been regular, and in accordance with the provisions of title 5, part 3, of the Code of Civil Procedure. And the order of imprisonment was in accordance with the provisions of section 1219, a part of that title, the court having found that the party convicted was able to make the payment required of him, and consequently that it was in his power to perform the act required. It is insisted here, however, that the court erred in this finding; that there wras no evidence to support it. That is a matter into which we cannot inquire upon this writ. Under the writ the court can only inquire into the jurisdiction to find, not into the correctness of the findings upon which the conviction is based.