The petitioner was adjudged guilty of contempt for failure to pay alimony and counsel fees in a divorce proceeding brought against him by his wife. He seeks relief from said imprisonment upon the ground that he was unable to pay said amount at the time of the adjudication of contempt and that he was deprived of the opportunity of proving his inability to pay said amount upon the hearing of the contempt proceedings. [1] The court found as a fact in its order of commitment that the petitioner was able to comply with the order and this adjudication is conclusive on habeas corpus. (Ex parteSpencer, 83 Cal. 460 [17 Am. St. Rep. 266, 23 P. 395];Ex parte Clark, 110 Cal. 405 [42 P. 905]; Exparte, Cottrell, 59 Cal. 417, 420; Matter ofMaginnis, 162 Cal. 200, 206 [121 P. 723].)
[2] The petitioner also alleges that he is now unable to comply with the order and for that reason his imprisonment should terminate. (Pen. Code, sec. 1487, subd. 2.) This question should have been presented to the superior court in the first instance. (Ex parte Wilson, 73 Cal. 97 [14 P. 393]; In re Wilson, 75 Cal. 580 [17 P. 698]; *Page 209 Code Civ. Proc., sec. 1143 et seq.; Spencer v.Lawler, 79 Cal. 215 [21 P. 742].) [3] The petitioner claims that he was denied the right to present his evidence as to his inability to comply with the order of the court. It is sufficient on this point to say that the order of commitment recites that evidence was received in support of the charge of contempt and in view of this recital we cannot consider that question. The writ of habeas corpus cannot be used as a basis for review as upon appeal. (Ex parte Cottrell,59 Cal. 422.)
The petition is denied and the prisoner remanded.
Myers, J., Kerrigan, J., Waste, J., Lennon, J., Lawlor, J., and Seawell, J., concurred.