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Ex parte Silvia

Supreme Court of California
Jan 17, 1899
123 Cal. 293 (Cal. 1899)

Summary

In Ex parte Silvia, 123 Cal. 293 [55 P. 988, 69 Am. St. Rep. 58], it was found that the petitioner was unable to make the required alimony payment without selling or encumbering his homestead.

Summary of this case from In re Smallbone

Opinion

         HABEAS CORPUS to the Sheriff of the County of Sonoma to test the legality of an imprisonment for contempt by the Superior Court of Sonoma County for nonpayment of alimony. Albert G. Burnett, Judge.

         COUNSEL:

         T. J. Geary, and F. A. Meyer, for Petitioner, John J. Silvia.

         John P. Rodgers, for Leonora Silvia.


         JUDGES: In Bank. McFarland, J., dissented. Garoutte, J., and Harrison, J., did not participate in the decision.

         OPINION

         THE COURT

         The return to the writ of habeas corpus issued herein shows that the petitioner is held in custody under orders directing his imprisonment until he shall have paid a certain sum of money awarded as alimony pendente lite. When an alleged contempt consists in the failure to obey an order of court the party charged with such failure may be imprisoned until he complies, provided he has the ability to comply. If it is not in his power to do what he has been commanded to do, he cannot be condemned to perpetual imprisonment for failure to perform an impossibility. This being so, and every court being, in contempt proceedings, a court of strictly limited jurisdiction, it is essential to the validity of a judgment directing the imprisonment of a person until he complies with an order of the court that it should be found that he is able to comply.

         In this case the first order of imprisonment did contain a recital that the petitioner was able to pay the alimony in question, but upon a subsequent proceeding in habeas corpus before the same court, in which his ability to pay was the principal question to be determined, the order remanding him, and under which he is now held, fails to show that he is able to pay without selling or encumbering his homestead, and the question is presented whether a man can be compelled, by duress of imprisonment, to sell or encumber the homestead, which under the constitution and laws of the state is exempt from forced sale, except in certain enumerated cases, of which payment of temporary alimony is not one.

         In our opinion this cannot be done. The prisoner having no means aside from his homestead, in a legal sense has not the ability to pay the alimony, and his continued imprisonment is unlawful.

         It is ordered that he be discharged from custody.


Summaries of

Ex parte Silvia

Supreme Court of California
Jan 17, 1899
123 Cal. 293 (Cal. 1899)

In Ex parte Silvia, 123 Cal. 293 [55 P. 988, 69 Am. St. Rep. 58], it was found that the petitioner was unable to make the required alimony payment without selling or encumbering his homestead.

Summary of this case from In re Smallbone
Case details for

Ex parte Silvia

Case Details

Full title:Ex Parte JOHN J. SILVIA on Habeas Corpus

Court:Supreme Court of California

Date published: Jan 17, 1899

Citations

123 Cal. 293 (Cal. 1899)
55 P. 988

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