Gilbert, J.
The defendant having been called upon to show cause why he should not be adjudged in contempt of court and punished for his failure to pay alimony and attorney’s fees, and having filed a sworn answer which is undenied, and having introduced evidence which was uncontroverted, showing his inability to comply with the order to pay alimony and attorney’s fees, the court below erred in adjudging him in contempt. Judgment reversed.
All the Justices concur.
On the hearing the respondent introduced an affidavit of the sheriff, to the effect that all of the personal property owned by respondent had been levied upon and sold, realizing the sum of $615.49, which would be applied to the two executions under which levy was made, aggregating more than $900. He also introduced an affidavit of a physician, to the effect that Newsome had only one arm; that he was a chronic sufferer from piles; that he had been unable to work for four weeks prior to the making of the. affidavit, and should be in bed most of the time, and that the physician was at the time treating him for the disease. Also, an affidavit of a schoolteacher, to the effect that the respondent had supplied his child with school-books, and that the child was doing well in school.
The court held the respondent to be in contempt of court, and ordered that unless within ten days he complied with the order requiring the payment of alimony, or purged himself of the con tempt, he should be placed in jail. Error was assigned upon this judgment.
B. F. Walker, for plaintiff in.error.
J. B. & T. R. Burnside, contra.