OPINION
BISHOP, Justice pro tem.
Petitioner, adjudged guilty of contempt of court in having failed to make two monthly payments required by an interlocutory divorce decree, seeks a writ of prohibition to prevent the respondent court from imposing the threatened punishment. We are of the opinion that a peremptory writ should issue, because the order under which the pending penalty would be exacted was beyond the jurisdiction of the court to make.
The order which hangs over petitioner’s head, as it is given to us by the respondent court in its answer, recites that petitioner is in contempt in having failed to make two payments as theretofore ordered by the court, due July 1 and August 1, and "that said plaintiff (the petitioner) is fully able to make said payments." On these recitals, the respondent court ordered petitioner to pay part of the sum in arrears within ten days, and all within thirty days, "and for failure to so pay * * * he is ordered to be taken into custody and not released until he has complied with this order and the orders heretofore made by this court." This order of commitment is in the form authorized by section 1219, Code of Civil Procedure: "When the contempt consists in the omission to perform an act which is yet in the power of the person to perform, he may be imprisoned until he have performed it, and in that case the act must be specified in the warrant of commitment." Interpretive of, or supplemental to, these provisions of the statute, it has been held that, if it appear that the person adjudged in contempt has not the ability to perform, the order requiring commitment until performance is beyond the power of the court to make. Ex parte Cohen (1856) 6 Cal. 318; Ex parte Overend (1898) 122 Cal. 201, 54 P. 740; Ex parte Silvia (1899) 123 Cal. 293, 55 P. 988, 69 Am. St. Rep. 58; In re McCandless (1911) 17 Cal.App. 222, 119 P. 199; In re Saul (1917) 32 Cal.App. 531, 163 P. 505; Myers v. Superior Court (1920) 46 Cal.App. 206, 189 P. 109. In the pending procedure there is no conflict in the evidence upon which the finding of the trial court must rest. At the time of the hearing, petitioner was about $90,000 in debt, his farming operations on leased property during the year netting a deficit; he had no income, and no property other than an equity in an automobile, required in his farming operations, and a pipe line, also needed in his farming, and which could not be removed from where it was installed. We do not find in this testimony proof of ability to comply with the court’s order to make up the two payments which had become delinquent. Nor do we believe that petitioner’s present ability is proven by evidence that his credit is still good, and that he can go deeper into debt. We are of the opinion that petitioner may not be compelled, by imprisonment, to comply with an order of the court, where the only method of compliance is a sale of property necessary for the continued operation of his business being conducted in good faith, or the securing of funds by means of a loan which would add to an already existing heavy indebtedness.
This conclusion is in harmony with the authorities, which do not recognize the right of a court in these cases to determine how a man shall carry on his business or control his economic ventures, although insistent that, if he is able, he shall obey the orders of the court. In Ex parte Todd (1897) 119 Cal. 57, 50 P. 1071, the petitioner was found unable to make the payment which had been ordered, and it was also found that he had not tried to get work in order to have the funds. He was ordered into custody until he paid. This, our Supreme Court said, was "clearly in excess of the power of the court, which cannot compel a man to seek employment in order to earn money to pay alimony, and punish him for his failure so to do."
Ex parte Silvia (1899) 123 Cal. 293, 55 P. 988, 69 Am. St. Rep. 58, presented a case where imprisonment until compliance was held unauthorized, although it appeared that the petitioner had a homestead which he might have sold or incumbered. "In a legal sense (he) has not the ability to pay the alimony." See, also, Merritt v. Superior Court (1928) 93 Cal.App. 177, 181, 269 P. 547.
In Crombie v. Crombie (1915) 88 Wash. 520, 153 P. 306, the husband had been found in contempt for failure to make payments, but this finding was reversed, the Supreme Court saying that he had established his inability to make the payments, even though he had some land which he might have sold, as a sale would have been at a sacrifice, harmful to the ultimate interest of both parties. In a later case, Wells v. Wells (1918) 99 Wash. 492, 169 P. 970, L. R. A. 1918C, 291, the same court held that a crab fisherman, who was not meeting with success, could not be compelled to take up a new trade or to pay for his independence by being punished for contempt. Messervy v. Messervy (1910) 85 S.C. 189, 67 S.E. 130, 30 L. R. A. (N. S.) 1001, 137 Am. St. Rep. 873, is much to the same effect. Of some interest, too, is Holcomb v. Holcomb (1909) 53 Wash. 611, 102 P. 653, 654, where a commitment was set aside with the statement: "The fact that the appellant’s mother may have heretofore advanced money to pay alimony, or the fact that his brother may have given security to keep him out of prison, affords no sufficient basis for the order appealed from."
In stating our conclusion that the evidence failed to justify the court’s finding that petitioner had the present ability to pay, we are not to be understood as holding that the evidence would not have supported a finding that on July 1 and August 1 he had the ability. There is no finding as to those dates, and the question is not before us. The order made was beyond the jurisdiction of the court to make, as the term "jurisdiction" is now used in these proceedings, and it is ordered that a peremptory writ of prohibition issue, restraining the respondents from proceeding further under the order dated September 4, 1931, and filed September 10, 1931.
We concur: CONREY, P. J.; YORK, J.
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