I agree that plaintiff has not manifested a proper regard for the orders of the trial court, and that he has merited punishment therefor under C. S., sec. 7392. This, however, is not the question for consideration. Plaintiff was ordered imprisoned "until he . . . . pay to the defendant" $2,550. To justify the imprisonment of a person, in such a case, until he has paid a certain sum of money, it must appear that the payment of the sum was within the power of the person at the time of the commitment. (C. S., sec. 7393.) I agree with the majority opinion that the question for decision is whether the evidence shows that it was within his power to make the payment when the court ordered him imprisoned. I also agree that this question may be determined on a writ of review.
The action of the trial court is justified by the majority principally on the ground that plaintiff was one of three executors and trustees of his deceased mother's estate, and that he can secure sufficient money to comply with the court's order from that source. The testimony in this respect was very brief, and was to the effect that plaintiff was named as executor and trustee in his mother's will. There is no evidence that he ever qualified as or has performed any of the duties of executor or trustee, or that he is now, or ever will be, entitled to any payment from that source.
The last paragraph of the findings is that "Upon the foregoing facts, the court concludes and finds that the plaintiff is guilty of a wilful contempt. . . ."
In none of the "foregoing facts" is any reference whatever made to plaintiff's appointment as executor or trustee of his mother's estate; nor is there any imputation that he is able to comply with the court's order on that account. There is not an iota of evidence that he is entitled to any *Page 112 compensation by reason of any services with respect to his mother's estate. On the contrary, plaintiff testified that he had no funds or property or resources whatever. In this he was fully corroborated by his sister.
That plaintiff's relatives are wealthy and in times past have furnished him funds is no indication of present ability on his part to comply with the court's order to pay alimony. That his sister possesses, as the court specifically found, "property and assets of so great a value that she cannot state its approximate value" is wholly immaterial to this case, and, together with other findings, only serves to indicate that the commitment was based on the ability of his relatives to pay the required sum.
Feeling, as I do, that there is no evidence in the record that plaintiff has the present ability to comply with the court's order, I dissent from the affirmance of the proceedings and hold that the commitment was void.
Petition for rehearing denied.