Ex parte Silvia

THE COURT. The return to the writ of habeas corpus issued herein shows that the petitioner is held in custody under orders directing his imprisonment until he shall have paid a certain sum of money awarded as alimony pendente lite. When an alleged contempt consists in the failure to obey an order of court the party charged with such failure may be imprisoned until [294]he complies, provided he has the ability to comply. If it is not in his power to do what he has been commanded to do, he cannot be condemned to perpetual imprisonment for failure to perform an impossibility. This being so, and every court being, in contempt proceedings, a court of strictly limited jurisdiction, it is essential to the validity of a judgment directing the imprisonment of a person until he complies with an order of the court that it should be found that he is able to comply.

In this case the first order of imprisonment did contain a recital that the petitioner was able to pay the alimony in question, but upon a subsequent proceeding in habeas corpus before the same court, in which his ability to pay was the principal question to be determined, the order remanding him, and under which he is now held, fails to show that he is able to pay without selling or encumbering his homestead, and the question is presented whether a man can be compelled, by duress of imprisonment, to sell or encumber the homestead, which under the constitution and laws of the state is exempt from forced sale, except in. certain enumerated cases, of which payment of temporary alimony is not one.

In our opinion this cannot be done. The prisoner having no means aside from his homestead, in a legal sense has not the ability to pay the alimony, and his continued imprisonment is unlawful.

It is ordered that he be discharged from custody.

McFarland, J., dissented.

Garoutte, J., and Harrison, J., did not participate in the decision.