| Ill. App. Ct. | Dec 20, 1894
delivered-the opinion of the Court.
It appearing by the affidavit of Anna Schuele that appellant was in default in the payment of alimony theretofore ordered by the court to be paid by him, the rule to show cause was property issued.
In response to such rule appellant came in and by his own and the affidavit of Adolph Sturm, showed that his failure to comply with the order of the court had been and was due to his inability to pay.
The order committing appellant to the county jail will, if carried out, probably result in throwing three and perhaps four children upon the county for support, and will not, so far as the record of this cause shows, tend to bring about a payment of the alimony due Anna Schuele.
It is not a contempt of court to fail to pay money which one neither has nor can obtain, and which he has not causelessly either put out of his hands or failed to receive.
The Supreme Court in the case of Wightman v. Wightman, 45 Ill. 167" date_filed="1867-09-15" court="Ill." case_name="Wightman v. Wightman">45 Ill. 167, a proceeding by way of attachment for contempt in failing to pay a sum ordered to be paid in a decree for divorce, say :
“We are of opinion that the facts before the court, in the manner they Avere presented, fully justified the court in aivarding the attachment as for contempt. This did not necessarily result in the commitment of the defendant, for it ivas in his power to purge himself of the contempt, by showing to the court why he was unable to pay the installments. Disasters may have overtaken him, rendering him unable to perform the decree; various circumstances might lia-ve been brought to the knowledge of the court, divesting his conduct of any imputation of contempt, and his discharge thereby had.”
What is there said is applicable here.
The inability of the appellant to pay the alimony he owes does not relieve him from his liability therefor. If he has credits or effects liable to seizure upon execution, they may be taken, and if hereafter his earnings are such as to enable him to provide for the necessities of himself and family and leave an amount which he can pay upon the alimony he owes, a new rule may be issued, and he be committed if he fail, in so far as he is able, to comply with the order made in the decree,of divorce.
The order of the Circuit Court is reversed.