THE COURT. —
Petitioner, as shown by the return, is in the custody of the sheriff by virtue of a commitment issued on account of petitioner's failure to make certain monthly payments by the superior court directed for the support and maintenance of his minor children. It nowhere appears in the record, nor in any order or judgment of the superior court in connection with the proceedings, that petitioner has the ability to pay the sum ordered. While it is the duty of a parent to support children of tender years, that he be imprisoned on account of the failure to obey an order of the court in connection therewith, it must affirmatively appear that he has the ability to comply with the order of the court. ( In re Cowden, 139 Cal. 244, [37 P. 156]; Ex parte Cohen, 6 Cal. 319; Ex parte Rowe, 7 Cal. 175; Ex parte Silvia, 123 Cal. 293, [69 Am. St. Rep. 58, 55 P. 988].)
Petitioner discharged.