Atkinson, J.
Under the pleadings and the evidence the judge was authorized to find that the defendant was in arrears in the payment of alimony and had not made any bona fide attempt to pay the amount awarded against him, and consequently to adjudge him in contempt of court. The judgment ordering the defendant to be incarcerated in the common jail of the county until the further order of the court, unless he should within thirty days pay the amount of alimony due the plaintiff, was authorized by the evidence.
Judgment affirmed.
All the Justices concur, except Bill, J., dissenting.
At the hearing the following evidence was introduced, (a) The sworn answer of the defendant. (&) Affidavit of J. M. Duke, as follows: “That he is a resident of said State and county, and is the father of Jesse J. Duke; that said Jesse J. Duke has no property, either real or personal, whatever; that what little he had, his wife, Mrs. Ruby Duke, got, first by what he gave her and aftewards she got what was left by suit; that by reason of losing what he had, by breaking his leg, and general financial and crop conditions, it takes all he can make to live on and hardly enough for that. By reason of having broken his leg and now having rheumatism, his ability to labor has been very much decreased; part of the time he is not able to work, and is limited in the kinds of work he can do. Said Jesse Duke has nothing whatever and no means of making a livelihood except as a common farm laborer, and for the reasons stated can do very little of that.” (c) Affidavit of Dr. O. B. Howell, as follows: “That he is a regular practicing physician, located at Jackson, Ga., that he knows J. J. Duke; that two years ago he waited on said J. J. Duke for a broken leg; he broke the tibia bone in three places as was shown by X-ray; since that time and now he has been greatly handicapped and able to do very little work, that he is still under his treatment; that he is now affected with rheumatism as the outcome from said injury.” (d) Affidavit of W. C. Woods, as follows: “That he knows Jesse J. Duke; that he, deponent, is the secretary of Snapping Shoals Lodge No. 375 E. & A. M., of whichsaid Jesse J. Duke is a member, tbat said Jesse J. Duke, in 1920, broke his leg and was not able to work for a long time, that by reason of the same and the disastrous, as well as the fact of his wife suing him and getting everything he had, which has been turned over to her, he (the said Jesse J. Duke) has been in severe straits and had nothing, and said Snapping Shoals Lodge, knowing his -condition and needs, contributed to him during the years 1920, 1921, and 1922 about $20.00 as charity; that said Jesse J. Duke now has nothing.” (e) Affidavit of J. S. Laster, as follows: “That he knows Jesse J. Duke; that he, deponent, is the secretary of Snapping Shoals Chapter No. 63 E. Á. M.; that said chapter has, during the years 1920, 1921, and 1922, contributed as charity about $20.00 to said Jesse J. Duke, he being a member of said chapter; that said Jesse J. Duke in 1920 broke his leg and was not able to work for a long time, and has had trouble with his wife and she has gotten everything he had, and he has been in needy circumstances; that said Jesse J. Duke has nothing.” (/) Affidavit of fifty-one persons, as follows: “That they reside in the community in which, Jesse J. Duke lives, and that they know him well; that he is an honest, honorable, upright gentleman, hard-working and industrious; that in June, 1920, he had the misfortune to break his leg very badly, from which he could not walk or work for months; that he stands well in this community.” /
The plaintiff did not introduce any evidence. The following occurred: “After the defendant had concluded the introduction of his evidence, the court directed him to stand up, and then walk across the floor of the room where the hearing was being held. The defendant, in reply to a question from the court, stated that he had suffered no injury to his leg since it was broken, and that the bones were now healed. He also said that he was thirty-two years of age. His physicial appearance was then commented on by the court as being most excellent, and his clothing was neat and well kept; and he said, in reply to a question from the court, that he was living with his father, and that he had made no effort to get employment elsewhere, except to work by the day at such jobs as he could get. The court then stated that it was his opinion, from the physical appearance of the defendant, that he was not incapacitated for labor, and that it was his duty to support his wife, and that the court would have to require him to do so on the showing as made, or else have him incarcerated for contempt of court; and thereupon signed the order now complained of.” The judge ordered that the defendant within thirty days pay the amount then due, or in default thereof that he be incarcerated in the common jail of the county until the further order of the court. To this order the defendant excepted on the grounds that it was contrary to law and without evidence to support it.-
II. M. Fletcher, for plaintiff in error.
C. L. Redman, contra.