Defendant in error, Agnes Chase, obtained a divorce from plaintiff in error, Wallace Chase in 1917, and was awarded the custody of three minor children. At the same time an order was made that plaintiff pay her $50 per week for the support of the children. In 1920 that order was modified to read $75 per month.

At this time plaintiff earned $3000 per year and payments under the modification were made until Jan. 1, 1924 when he started into business under the name of the Chase Chemical Co. No payments were then made until December 1924 when he was cited for contempt and ordered to pay $75 to defendant or go to jail. The money was paid.

Subsequently he was again cited for contempt and he appeared in court and testified that he had not drawn more than $60 or $65 a month out of the business during the year 1924; that he had no money at the time; that his: business inventoried $3000 ]up'on which there was a $1500 mortgage. The Cuyahoga Common Pleas found Chase guilty of contempt and ordered him committed to jail until the $300 was paid. The Court of Appeals affirmed this judgment.

It is contended by Chase in the Supreme Court that, “The court, before imprisoning for failure to perform should find the accused capable of performing, unless the court should find that the accused fraudulently put it out of his power to perform.” Effinger v. State. 11 OCR.

The Court of Appeals in confirming the lower court stated that Chase drew $60 or $65 per week from his business, but the record shows that he drew that amount each month. The Court also said that the judgment of the lower court itself imports verity. It is claimed that the complaint of plaintiff in error is not based upon failure of Agnes Chase to allege and prove his ability to pay.

Plaintiff’s testimony showed that he had absolutely no money.

Sentencing Chase to jail for contempt, the record itself showing impossibility of performance, was unjust and the order not warranted under the law or evidence. Considering the fact that Chase was at the time of sentence, unable to comply with the order to pay, while in jail he would not be able to better himself, and the result would be sentencing him to jail for life.