
    No. 12,667.
    State ex rel. Louis J. Huber vs. F. D. King, Judge, et als.
    An order for alimony in a divorce suit is nothing more than the judicial sanction and enforcement (under abnormal conditions) through the judiciary of the duty by the husband to support his wife. 0. 0., Arts. 119-120.
    A right to receive or demand support (or money in order to enforce support) is something other and different than a right to receive and be paid a technical legal debt.
    
      There are many cases when the right to claim and receive money is not derived from, nor based upon the relation of debtor and creditor between the parties. Judgments in snob cases recognizing the right and ordering its enforcement are not necessarily judgments for debt.
    The mere fact that the judicially 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 cumulative or consecutive remedies.
    The judge in a proper case has the power to punish by imprisonment a husband who had been ordered to pay alimony to his wife and who has continuously refused to obey its order while able tc do so.
    QN APPLICATION for Writs of Habeas Corpus and Certiorari.
    
    
      Linville & Untereiner for Relator.
    
      J. H. Ferguson for Respondents.
    Submitted on briefs November 22, 1897.
    Opinion handed down November 23, 1897.
    In the petition filed, in this case on behalf of the relator, it is alleged that the latter is illegally and unwarrantably imprisoned and deprived of his liberty by the civil sheriff of the parish of Orleans and the keeper of the parish prison of said parish, under and by virtue of a pretended commitment issued in the matter entitled Emily Weyman vs. Louis J. Huber (her husband) for divorce (No. 54,033 of the docket of the Civil District Court, Division B.), issued by Hon. F. D. King judge of the said court.
    That a writ of -fieri faeias issued in the above cause after judgment rendered against relator for the sum of seventy-five dollars per month alimony payable in advance. That relator was ordered to show cause why he should not be punished for contempt of the authority of said court; said pretended contempt being relator’s inability to comply with the judgment of said court and paying to his wife the said seventy-five dollars per month. That on the day fixed for the trial of said pretended rule for contempt, relator made due return thereto, excepting to said contempt proceedings on the grounds that there was no law authorizing a married woman to institute proceedings against her husband — that the rule for contempt disclosed no legal cause of action. That after the exceptions were overruled, relator answered substantially that his said wife having left the domicile assigned to her by the court without obtaining the court’s permission, relator could not be compelled to pay the alimony. That relator had paid his wife the sum of four hundred dollars which should have been imputed to the payment of the alimony. That relator was unable to pay the alimony allowed by the court, he having no other property that he could dispose of or which yielded a revenue except his salary, which in itself was insufficient to pay said alimony, all of which was fully and conclusively proved in open court, there being no other witnesses except those for the defence sworn. That thereupon relator was illegally and unwarrantably adjudged to be in contempt and forthwith committed to prison by Hon. F. D. King, judge of said court, and thereupon relator notified the court that he would apply to the Supreme Oourt for relief through its supervisory process.
    That there was no appeal from said order committing him to prison, and his only means to have said judgment reviewed by the Supreme Oourt is by the writ of certiorari, which is necessary in the premises. That said proceedings for contempt and the order committing him to prison are absolutely null and void, and relator is entitled to have it set aside, and that he be set at liberty, and that a writ of habeas corpus is necessary in the premises for the following reasons, to-wit:
    1. That the offence, if such it might be called, did not constitute a contempt of the authority of the Honorable Division B of the Civil District Court.
    2. That the law absolutely forbids a wife to bring any suit or proceeding against her husband except actions for the separation of property, divorce and for the protection of her paraphernal property — that the proceeding for contempt herein taken in said suit being forbidden by a positive law is therefore absolutely null and void.
    3. That contempt proceedings can not be invoked for the purpose of enforcing or executing ex parte orders or final judgments.
    4. That there were ways of executing her judgment other than the proceedings taken for contempt.
    5. That relator being financially unable to comply with the judgment for alimony at the time the writ was issued, and not having since been able to pay and satisfy said judgment, imprisonment under such circumstances is imprisonment for debt, which has been abolished in this State long since.
    6. That the law specially exempts a husband from payment of alimony to a wife unless she proves that she has constantly resided in the domicile assigned to her by the court.
    7. That there is no law which authorizes contempt proceedings in case of a party litigant failing to satisfy a judgment rendered against him.
    In view of the premises, relator prayed that a writ of certiorari issue directed to the Hon. F. D. King, judge of the Civil District Court, commanding him to send to the Supreme Oourt the proceedings in the matters aforesaid in order that their validity might be inquired into, and to proceed no further in said cause until judgment shall have been pronounced on the regularity and validity of said proceedings; that a writ of habeas corpus issue to the civil sheriff of the parish of Orleans commanding him to produce relator in open court on the hearing; that relator have all other and necessary orders in the premises, and after due proceedings had, the order committing relator to prison for contempt of court be declared absolutely null and void and relator be released from imprisonment, and for all general and special relief such as the nature of the case requires and the law permits.
    On the day fixed for a hearing the civil sheriff produced the body of the relator in court and returned that he held him under the order of commitment referred to in relator’s application herein.
    The records ordered were sent to the court as directed. The District Judge answered or returned:
    
      First — That proceedings were instituted in said court by said Mr3. Emily Weyman for separation from bed and board from said Louis J. Huber, which suit is now pending. That a rule was taken by plaintiff in said suit for alimony, and said rule after hearing evidence as to defendant’s ability to pay the amount specified in said rule and proof that the wife had constantly resided in the house appointed by the court was made absolute, and said Huber was ordered to .pay his wife and her three minor children seventy-five dollars per month, beginning from the filing of said suit, to-wit: July 15, 1897. That subsequently, November 15, a rule was taken in said case on said Huber to show cause why he should not be punished for contempt on the ground that he had refused to obey the said order for the payment of money. Said rule was made absolute after hearing evidence and argument of counsel, and accordingly said Huber was committed to the parish prison for ten days for contempt of the authority of the court.
    
      Second — It was clearly established on the trial of said rule for contempt that Huber had not paid any portion of the alimony allowed by the court although three instalments were then due. That a written demand had been made therefor by counsel and a writ of fieri facias had issued and been returned no property found. That said Huber had received as salary and otherwise nearly five hundred dollars in cash since the order for the payment of alimony was rendered, and had refused to pay said alimony and had persistently evaded the powers of court. That had it been shown that defendant was unable to pay the amount allowed but could pay a smaller amount, the court would have modified its said order accordingly; or if defendant had established that he was without means, the court would certainly have not committed him for contempt.
    
      Third — That respondent in committing said Huber for contempt exercised the power and passed judgment in the manner and form prescribed by law, and within the limits fixed by law.
    
      Fourth — That under Art. 148 of the Oivil Code the husband can be compelled to pay alimony.
    
      Fifth — That imprisonment for a fixed period for contempt for refusal to pay alimony allowed by a court of competent jurisdiction is not imprisonment for debt.
   The opinion of the court was delivered by

Nicholls, C. J.

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 immaterial that this information should have come from the wife — it is enough that it is derived from any one legally interested in the subject matter. • Besides the rule for contempt was a mere incident of a proceeding which was itself an incidental proceeding in a suit which the wife was officially authorized to institute.

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 the 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 special 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 commitment) 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 other 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 welfare 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 conditions) through the judiciary of the duty by the husband to support the wife.

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 relation 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 judicially 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 cumulative 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 proceed 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 a 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.

The 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 Perkins (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 to 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. enforced 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 one gross sum, or at One time, but in different sums and at different times at the discretion of the court. Nor does this power exhaust itself merely by a mere provision for the actual necessary support of the wife during the' litigation. But it is equally within the power of the court to decree the payment of the legal expenses of the suit. Legal expenses may well be included in this provision, and this includes the fees to attorneys. This is not a debt, as has been decided by the Supreme Court of Connecticut in Lyon vs. Lyon, 21 Conn. 185.”

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, 80 N. C. 322; Menzie vs. Anderson, 65 Ind. 239-though to the contrary Chase vs. Chase, 105 Mass. 385.

In Carlton vs. Carlton, 44 Ga. 219, the court refers to the order of a court for alimony as not being a final judgment, but one which is at any time open to modification and re-examination. In dealing with the particular subject of a violation of the order furnishing the basis for contempt, with reference to imprisonment for a debt, it said: “The imprisonment must be clearly for the process of the court, and be of one who is able and unwilling to obey the order of the court. It must be remembered also that the imprisonment by a judge for contempt is always conditional, and is at his discretion, and may, at any time, by the same discretion be discharged. And very clearly it ought never to be resorted to except as a final process founded on the unwillingness of the party to obey. The moment it appears that there is inability it would clearly be the duty of the court to discharge the party, since it is only the contempt for the disobedience upon which the power rests.”

In Daniels vs. Lindly, 44 Iowa, 569, the court said: “ The claim of the wife for alimony is not in the nature of a debt. She is not the creditor of the husband — it is an equitable allowance made to her out of her husband’s estate.”

In Pain vs. Pain, 80 N. C. 325, the court said: “The allowance is not a debt within the meaning of the Constitution as contended before us for which imprisonment is not permitted. It is an order of a competent court only to be enforced as are other judicial commands, when necessary by process of attachment against the person. The power to award the process is inherent in the court — essential to the exercise of its jurisdiction and the maintenance of its authority. Without the ability to compel obedience to its mandates, whether the order be to surrender writings in possession of a party to execute deeds of conveyance to pay money as in the present case or to perform any other act the court is competent to require to be done, many of its most important functions would be paralyzed. The wilful disobedience of a lawful order is itself criminal.” We have reached the conclusion after a careful consideration of the question before us that the District Judge was in the premises acting within his jurisdiction and possessed the power” in a proper case to punish by imprisonment a husband who had been ordered by it to pay alimony to his wife and who had continuously refused to obey its order, while able to do so. The imprisonment may in a given case lead up indirectly as its result to the payment of the money, but the imprisonment itself is directed as a punishment against a contempt of the court ordering it.

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.  