Material facts antecedent to the present case are these: In a divorce action instituted by his wife, Gertie Mae Adair, and following a jury trial, judgment of divorce was rendered against appellant as of March 20, 1947, but dated March 4. In this decree the mother was awarded custody of their minor child and defendant Adair ordered, pursuant to Art. 4639a, Vernon’s Ann.Civ.Sts., to pay into the court registry the amount of $10 per week toward support and maintenance of the child, Vera Mildred Adair (such sum having been found by the jury and fixed by the court as an award that defendant was able to pay). The payment for support was to begin March 15, 1947 and continue each Saturday thereafter until said child should reach the age of 16 years.
On January 3, 1949, the sworn affidavit for contempt against Adair, filed by the former wife and resisted by him, was heard by the court' with result that he was ‘ adjudged in contempt for failure to obey above order in matter of child support, with punishment fixed at confinement for three days in the Dallas County jail, the judgment reciting that he (Adair) be “further confined in said jail until he has fully purged himself of such contempt by full observance and obedience of the decree of this court referred to above by the payment of the sum of $940.00 for the support of his children.” At the hearing it was developed that nothing had been paid by contemner under the divorce judgment toward support of said minor. After remaining in jail for three days, Adair paid the costs of court incident to the contempt proceeding and then filed the instant petition in nature of habeas corpus to effect his release from further confinement under the contempt judgment then outstanding. On hearing of this application for habeas corpus, petitioner was remanded to jail, judgment of the trial court reciting that, “having examined carefully the writ of habeas corpus and return thereon and all documents attached to said writ and having heard all of the testimony offered by both sides, and the court being of the opinion that it has jurisdiction and further of the opinion that the said Chat Adair is legally held in custody and under restraint of his liberty by the said J. E. Decker, Sheriff aforesaid; * * Exception to and notice of appeal was taken from said order, petitioner by the same order being denied bail. After appeal was perfected, a motion was presented by Adair to another district judge of Dallas County for enlargement upon bail pending appeal, which was granted, and he is now at liberty under appearance bond set and furnished in sum of $1,000.
Since we have here an appeal from a habeas corpus proceeding based upon a commitment for contempt in a civil case, it is properly addressed to this court. State v. Morris, Tex.Civ.App., 208 S.W.2d 701, error refused n. r. e.; 21 Tex.Jur. 482, sec. 55.
Passing to the merits of the appeal, although affidavit, pleadings, and judgment, are all regular in form, it appears that the testimony heard in the original contempt proceeding, on which Chat Adair was held in contempt, was not introduced in evi-' dence in this, a collateral proceeding in habeas corpus. The judgment for contempt which ordered Chat Adair confined in jail recited that “The Court having heard the evidence,” etc. Such evidence at that time was the basis of the original finding of the court in the contempt proceeding. Without such evidence being introduced in the ha-beas corpus proceeding to show what the court had before it when it committed the defendant for contempt, we cannot say that the original commitment was void. Ex parte Ellerd, 71 Tex.Cr.R. 285, 158 S.W. 1145, Ann.Cas.1916D, 361; Ex parte Burns, 133 Tex.Cr.R. 77, 109 S.W.2d 211.
This appeal is from the judgment remanding defendant after the hearing of the writ of habeas corpus. On a proceeding in habeas corpus it must appear that the judgment in the original contempt proceeding and the commitment thereunder were void before the writ of habeas corpus can be granted. Ex parte Westbrook, 129 Tex. 95, 84 S.W.2d 700, and authorities *326there cited; also Ex parte Genecov, 143 Tex. 476, 186 S.W.2d 225, 160 A.L.R. 1099.
It is true that on trial of the habeas corpus proceeding here appealed from, Adair testified that at the time he was committed and since that time it has not been within his power to pay the amount of $940 ■child support; that as to his earning capacity, etc., he had no property other than two acres of land in Dallas County, the value of which he did not know; that he had no prospects of raising $940 while he was confined in jail; testifying further with reference to the nature of his employment while in West Texas after judgment of divorce. However, there is no showing in the record that this was all the evidence heard by the trial judge at the trial on which the contempt judgment was based; and in the same connection it is to be observed that attorneys for appellant not only failed to bring forward into this record all testimony heard on the original contempt proceeding, but objected to any evidence bearing on said trial and commitment as irrelevant and immaterial.
Before the trial court or this court, for that matter, could justifiably discharge appellant under habeas corpus proceedings, there must be established a lack of evidence in the original contempt proceedings to support that judgment and his commitment thereunder. The situation on date of the contempt hearing is the determinative time on which is based petitioner’s ability to pay, and not the situation at some later time on application for habeas corpus; and in the absence of evidence heard by the trial court at the time of the original hearing, when he was held in contempt, the trial court could not have discharged him.
But appellant strenuously argues that under instant facts and circumstances the trial court exceeded its powers in a sentence of confinement beyond the three days and $100 fine authorized by Art. 1911, Vernon’s Ann.Civ.Sts. While it is true that Judge Dixon was limited to terms of the cited article in assessing punishment for an admitted disobedience of the 1947 judgment, only this part of the prior order was punitive; the remainder of said judgment requiring further confinement until a purging by payment of the definite amount of money arrearage being remedial and not in nature of a continuing punishment. It was but in aid of the court’s undoubted power to enforce its own judgments and decrees. Rule 308, Texas Rules of Civil Procedure. In Ex parte Tinsley, 37 Tex.Cr.R. 517, 40 S.W. 306, 311, 66 Am.St.Rep. 818, the same point was raised, the Court of Criminal Appeals there holding: “If, under this statute, it was given to a party to refuse to obey the orders of a court by merely submitting to a fine of $100 and three days’ imprisonment, and then go free, still contumacious of the order of the court, the court would be rendered powerless to enforce its orders. * * * So far as the statute with reference to punishments for contempt is concerned, that is a mode of enforcing the rights of the court and of preserving its respect and dignity. It is a punishment. The other is not a punishment, but a specific mode of enforcing a particular duty.” See also Ex parte Klugsberg, 126 Tex. 225, 87 S.W.2d 465; 9 Tex. Jur., sec. 26, p. 611.
Appellant calls attention to our holding in the unreported case of Brewer v. Brewer, of date February 6, 1948, as controlling of the present appeal. Brewer there occupied a situation quite different from that reflected here, in that he was finally discharged from all custody in the same judgment that rearranged his arrears of child support to begin in future installments at $5 per week. We regard the two opinions as distinguishable under widely different facts, but, to the extent of conflict, if any, we adhere to the principle announced in Ex parte Tinsley, supra.
We are familiar with the widely accepted rule that inability of an alleged contemner, without fault on his part, to render obedience to a decree of court is a good defense; see annotations to 120 A.L.R. 705; such plea, however, being properly maintainable on the hearing for contempt, rather than after incarceration and upon an ex parte proceeding in habeas corpus.
The trial court’s judgment remanding Chat Adair to the custody of the Sheriff *327of Dallas County was, therefore, the only judgment it could have entered on the record here. It is therefore affirmed.