While the evidence for the plaintiff in error was uncontroverted, it was not of such a nature as to require the judge to find that the plaintiff in error was unable to comply with the order awarding temporary alimony for his wife and eight minor children. The affidavits introduced, which constituted the only evidence to support his answer, gave mere conclusions of the affiants that the plaintiff in error was financially unable to make the alimony payment due. No statement was made therein of the amount of wages that he received and the necessary expenses incurred by him. There was no evidence that *Page 698 he was incapacitated for work, or that there had been any change in his ability to make the alimony payments in the period (less than two months) since the date of the order awarding alimony. While it is argued by counsel for the plaintiff in error that the wife has been amply provided for, temporarily, by the personal property mentioned in the affidavits, there is no evidence to authorize this conclusion, or to show that the personal property was accepted in lieu of alimony payments.

Judgment affirmed. All the Justices concur, except Duckworth, C. J., who dissents.

No. 16699. JULY 12, 1949. REHEARING DENIED JULY 27, 1949. On February 5, 1949, Alma King filed her petition in Emanuel Superior Court for temporary and permanent alimony for herself and eight minor children, against her husband, Robert King. On February 19, after hearing evidence, the judge awarded temporary alimony of $30 per month and $25 counsel fees. On his failure to make the first payment, Robert King was cited for contempt. He filed an answer pleading his inability to pay. On the hearing, the wife introduced in evidence a postal notice showing the arrival of a C. O. D. package for the husband, with a charge due of $48.07. The husband introduced in evidence two affidavits. The first affidavit was made by his employer, E. T. Young, and contained the statement that the affiant knew of his own personal knowledge that "Robert King is not in position to comply with the order of the court heretofore made in the case of Alma King against him for attorney's fees, alimony, etc., after having to live, pay board and other necessary expense. And that in addition to this there were other indebtedness of which was absolutely necessary for him to meet. And that his wages are not sufficient, after having surrendered all of his property, including livestock and all household and kitchen furniture, also corn, hay, potatoes, etc., to his wife, Alma King." The second affidavit, by T. H. Cooper, stated: "He [affiant] knows the conditions and circumstances under which Robert King is laboring; and that to his personal knowledge Robert King is not in position relative to finances to comply with the order of the court heretofore made relative to attorney's fees and alimony. And that his inability to so respond is due to the fact that his wife, Alma King, has taken all and everything he had to make a living with, including cows, hogs, goats, chickens, corn, potatoes, hay, and all *Page 699 household and kitchen furniture. . . And that after giving up everything that he has as aforesaid, and working at day labor, it is impossible for him to comply with the court order as aforesaid."

After hearing this evidence, the trial judge passed an order, on March 26, holding the respondent in contempt and directing that he be committed to jail until he purged himself of contempt. The exception is to that judgment.