The opinion of the court was delivered by
The pleadings raise no issue as to the proceedings themselves as taken in the lower court other than that the rule which terminated in the order of imprisonment, of which the relator complains, was issued at the instance of the wife, and it is contended that a wife is prohibited from bringing suit against her husband, except in certain specially enumerated cases, of which this proceeding is not one. The rule for contempt is not a suit of the wife against her husband; it is action taken by the court itself upon having certain matters brought to its notice as involving a violation of its authority. It is immate
Relator desires us to examine into the facts, of this particular case, with the view of ascertaining and announcing that the conclusions reached in respect to the same by the District Judge were erroneous— to declare that, in point of fact, relator’s failure to pay over the alimony ordered tobe paid to his wife arose not from wilful disregard and contempt of the court’s authority, but because he was 'by reason of the financial condition of his private affairs unable to comply with the order made upon him. The only question before us on this application for certiorari, outside of that which we have just passed upon, involves the “ power ” of the District Judge to have made the order he did. <•
We will consider this matter under thе application for a writ of certiorari; as habeas corpus, as a substantive writ, can not be made available in this case. Art. 89 of the Oonstitution.
The two grounds upon which relator relies are: First, that the wife being entitled to other remedies to enforce payment of the alimony decreed than that sought through the rule for contempt (as, for instance, by writ of fieri facias) is barred from resorting to this sрecial extraordinary method for relief; and, second, that the “ order ” in question, for the payment of alimony, evidenced a debt in favor of Ms wife, and he is (now under the court’s cоmmitment) illegaliy imprisoned as for imprisonment for debt, which imprisonment for debt was abolished by Act No. 117 of 1840.
Articles 119 and 120 of the Civil Code declare “ that the husband and wife owe to each оther mutual fidelity, support and assistance * * * the husband is obliged to furnish (the wife) with whatever is required for the convenience of life in proportion to his means and condition.” . *
The obligations thus declared by the lawmaker are in no sense of the words “ debts ” due by the spouses — they are simply recognized legal duties, which it is of paramount' importance to the welfarе of society should be not only recognized but enforced by the courts. An order for alimony in a divorce suit is nothing more than the judicial sanction and enforcement (under abnormal сonditions)
A right to receive or demand support (or money in order to afford support) is something other and different than a right to receive and be paid a technical legal debt. There are many cases where the right to claim and receive money is not derived from nor based upon the relatiоn of creditor and debtor between the parties. Judgment in such cases recognizing the right and ordering its enforcement are not necessarily judgments for debt.
The mere fact that the judiсially recognized right may be enforced through fieri facias.is not determinative of its legal character. It is by no means unusual for the same right to be enforceable by concurrent or cumulativе or consecutive remedies. It sometimes happens that resort to one method of enforcement is made an essential prerequisite to obtaining subsequent relief through a different mode and manner. The writ of fieri facias, with the sheriff’s return thereon of “no property found,” as is well known, sometimes furnishes merely the “ evidence ” upon which courts have to base their right to рroceed in certain statutory proceedings. The writ with that return upon it is usually (though not necessarily) made use of as evidence of insolvency. A party, however, may by various methods place his property beyond the reach of seizure by the sheriff, when in point of fact he may have ample means, and under such circumstances the writ with its return may serve as links in а chain of evidence by which to establish default, contumacy and contempt of court. They were obviously, as shown by the judge’s return, made use of in this case for that purpose.
Thе question which we have been called on to discuss, though a new one in Louisiana, has been frequently made the occasion of examination and decision in other States. In Ex parte Pеrkins (18 California, 64), the Supreme Court of California, referring to a contention such as that raised here, said: “This is not a debt within the meaning of the article forbidding imprisonment for debt. The husband is bound tо support the wife, yet this duty is an imperfect obligation which is not technically a debt. He does not owe her any specific amount of money, but he owes a duty to her which may be. еnforced by the order of a court compelling him to pay her money. So alimony temporary or permanent may be decreed by the court, and this may be done not in onе gross sum, or at One time, but in
Bishop on Marriage and Divorce, paragraph 428, page 370, Sixth Edition, referring to this matter says: “ Though the husband’s liability to pay money is distinctly recognized in the law and is enforceable against him and his property, it is not a ‘ debt.’’ ” In support of this proposition the author cites Pain vs. Pain,
In Carlton vs. Carlton,
In Daniels vs. Lindly,
In Pain vs. Pain,
For the reasons herein assigned, it is ordered, adjudged and decreed that the orders heretofore rendered in this case be and the same are hereby set aside, and the application of the relator be and the same is hereby refused and denied.