#### GREEN v. GREEN.

(Filed June 3, 1902.)

1. CONTEMPT — Findings of Court — Appeal.

In proceedings in contempt the facts found by tbe trial judge are not reviewable, except for tbe purpose of passing upon tbeir sufficiency to warrant tbe judgment.

2. CONTEMPT — Judgment—Imprisonment—Divorce—Alimony.

Where tbe trial judge finds tbat tbe party in contempt for failure to pay alimony could pay a part of tbe amount ordered, it was error to imprison bim until be should pay tbe whole amount.

ActioN by Maggie V. Green against John A. Green, beard by Judge George A. Jones, at Chambers, at Bryson City, N. O., October 31, 1901. From a judgment for tbe plaintiff, tbe defendant appealed.

Robert D. Gilmer and Walter E. Moore, for tbe plaintiff.

O. G. Gowan, for tbe defendant.

Montgomery, J.

In proceedings in contempt tbe facts found by tbe Judge are not reviewable by this Court, except for tbe purpose of passing upon tbeir sufficiency to warrant tbe judgment. Young v. Rollins, 90 N. C., 125. Tbe judgment (one of imprisonment) in tbis matter — a proceeding in contempt against defendant, wbo bad failed h> pay an amount of money to tbe plaintiff as alimony pendente lite — can- not be sustained on tbe facts found by bis Honor. Tbe Judge wbo beard tbe proceedings in contempt recited tbe findings of fact made by tbe Judge wbo granted tbe order allowing alimony, and added two others in words as follows: “I further find tbat said defendant could have paid at least a portion of said money, as provided in said order, and tbat be has wilfully and contemptuously failed to do so. I further find tbat be is a *579healthy and able-bodied man for bis age, being now about fifty-nine years old.” So', notwithstanding tbe finding of tbe fact tbat tbe defendant was able to pay only a part of tbe amount ordered to be paid, be was to be committed to tbe common jail until be should comply witb tbe order mating tbe allowance in the nature of alimony, tbat is, until be should pay tbe whole amount. Clearly tbe judgment can not be supported on tbat finding of fact. The finding tbat tbe defendant was an able-bodied man is of no consequence in this proceeding. Tbat fact was not found when tbe order allowing alimony was made, and tbat condition of body could be of no benefit to a man in jail. In Muse v. Muse, 84 N. C., 35, alimony was allowed the wife pendente lite at tbe rate of three dollars per month, payable in tbe future, tbe husband having denied tbat be bad any property, but conceded1 himself to1 be an able-bodied man.” If it bad become necessary to enforce tbe payment of tbe amount allowed in tbat ease by proceedings in contempt, certainly it would h'ave been a sufficient answer on tbe part of tbe husband to> have shown tbat he bad afterwards become unable to labor or unable to procure employment after diligent endeavor to do so. In tbe case before us, if tbe order allowing alimony twenty-dive dollars within five days and twelve and one-half dollars monthly thereafter bad been based on tbe finding tbat tbe defendant was an able-bodied man fifty-nine years old, certainly an. order committing him to jail for non-compliance would be dissolved if it appeared that be could not earn so much by manual labor. He made tbat answer in bis affidavit, although-, as We have seen, be was not required to do so because tbe order for alimony was not based on the finding tbat be was able-bodied.

There was Error.