
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1900.)
    Before Smith, Swing and Giffen, JJ.
    WILLIAM LUBBERING v. THE STATE OF OHIO.
    A court has the power to imprison one who has been ordered to pay alimony in an amount which he could pay, bnt which he refuses to pay; but where there is added to the amount of alimony a fine and the costs of the contempt proceeding, and, the defendant is committed until the whole sum is paid, the order of imprisonment is invalid.
    Error to the Court of Common Pleas of Hamilton county.
   SWING, J.

The plaintiff in error, Lubbering, was tried in the court of common pleas of Hamilton county on charges of contempt of that court. The contempt charged was that said Lubbering had neglected and refused to comply with the decree of that court when he was ordered to pay to his wife, Mary Lubbering, alimony to the amount of $1.50 per week, and to her attorney, D. D. Robinson, an attorney’s fee of $15. The court found the said Lubbering guilty of having failed to pay the alimony to the wife, as charged, and ordered him to pay at once the amount due the wife, to-wit, the sum of $4.50, and an additional sum of $25 to be applied in the payment of the expenses of the contempt proceedings, and also the costs of the contempt proceedings, amounting to $16.41, and in default thereof, ordered him committed to the county jail, to be confined until said sums of money were paid.

We think the judgment of the court should be set aside. The court had no power to order the accused to be confined in the jail until the fine and costs were paid.

Section 5645, of the Revised Statutes, provides:

“And if it be adjudged that he is guilty he may be fined not exceeding $100, or imprisoned not more than ten days, or both.” And section 5646, of the Revised Statutes, provides:
“When the contempt consists in the omission to do and act, which is yet in the power of the acoused to perform, he may be imprisoned until he performs it.”

The only contempt charged against' Lubbering which the court found him guilty of was in not paying the $4.60 alimony to the wife, and if Lubbering had been ordered Imprisoned until he paid this amount, we would hold the judgment valid, for we are of the opinion that the evidenoe shows he could have paid this amount; but what the court did was to order him committed until he paid $25 in the nature of a fine and the costs of the proceeding in contempt. The fine and costs were simply a judgment for money, and there was no power in the court to imprison as for a contempt on the failure to pay it.

The power to imprison as for a contempt on failure to pay alimony we think rests on different grounds. Alimony is something more than a debt, and the best interests of society require that decrees of this nature should have a'l the power that courts oan give for their enforcement. It is a protection to the family and the marriage relation which is the foundation of our society. We adhere to the ruling made by this court in the case of Effinger v. the State of Ohio, 11 C. C., 389.

G. C. Wilson,’.for Plaintiff in Error.

H. E. Stagman, for the State.

Judgment reversed and cause remanded to the court of common pleas to carry this judgment into execution, and for sucl* further proceedings as are authorized by law.  