188 Ga. 255 | Ga. | 1939
William M. Poole Jr. filed his' verified petition alleging that on October 19, 1928, a judgment of the superior court was rendered against him and in favor of Mrs. Willie Tom Poole Jr., now Mrs. Willie Tom Wright, for permanent alimony; that on October 13, 1938, he was adjudged in contempt of' court for non-payment of the alimony judgment, and was ordered incarcerated in jail and there kept until he paid the alimony judgment, or until further order of the court, the order providing that he might purge himself of contempt by paying $250. He alleged, that he was unable to comply with the order, and was confined to jail; that his failure to comply was not wilful; that he had no funds and had no propertj', but believed his friends would advance a small sum to pay on the alimony; that if he was released' he could possibly earn $7 per week, selling stovewoocl, and would be’able and willing to pay $5 per month on the alimony. The prayer was that he be allowed to pay $50 cash and the balance of the $250 in
The defendant in error makes the contention that the writ of error should be dismissed on the ground that no brief of evidence is contained in or attached to 'the bill of exceptions. The bill of exceptions contains the following statement: “the only testimony adduced [on the hearing] being that of defendant, that'he had no property, was unemployed, and that he could only make payments as specified in his said motion.” This was sufficient compliance with the Code, § 6-801 (1). The motion to dismiss is denied.
The only question presented by the record is whether or not the judge abused his discretion in denying the prayer for release from imprisonment. It is contended by the defendant in error that the judgment of October 13, 1938, adjudging the plaintiff in error in contempt of court, was an adjudication of his ability to make the payment required therein, and that to entitle him to the relief here sought it would be incumbent on him to show a change of facts subsequently to that order. We can not agree to this contention. In Carlton v. Carlton, 44 Ga. 216, 220, this court said: “It must be remembered also, that the imprisonment by a judge for contempt is always conditional, and is at his discretion, and may at any time, by the same discretion, be discharged. And very clearly it ought never to be resorted to except as a penal process founded on the unwillingness of the party to obey. The moment it appears that there is inability, it would clearly be the duty of the judge to discharge the party, since it is only the contempt, the disobedience upon which the power rests.” In Lester v. Lester, 63 Ga. 356, the right of the court to punish the defendant in an alimony proceeding for contempt was upheld, but in the opinion it was stated: "“If it is not reasonably and fairly within his power to comply with the order, he may disobey it, and the court must and will excuse him. . . Another consideration to which we look is, that such orders are subject to modification, from time to time;
In Heflinger v. Heflinger, supra, this court said: “Where the uncontroverted evidence shows the inability of the husband to pay the judgment awarded his wife for permanent alimony, it is error to adjudge him in contempt or to keep him confined in jail under an order adjudging him in contempt,” citing, in support of this ruling, Potter v. Potter, 145 Ga. 60 (88 S. E. 546); Lightfoot v. Lightfoot, 149 Ga. 213 (99 S. E. 611); Newsome v. Newsome, 155 Ga. 412 (117 S. E. 90); Blair v. Blair, 166 Ga. 211 (142 S. E. 743); Woodard v. Woodard, supra. Under this rule, there being no conflict in the evidence produced by the plaintiff in error on the hearing, and all the evidence, consisting of applicant’s testimony and his verified petition, showing that he possessed neither money nor property with which to pay the amount required by the order of the court in order to purge him of contempt, it was error for the judge to deny his petition and refuse to order his release from prison. Judgment reversed.