Opinion
May 5, 1909.
Walter Welch, for the appellant. Francis J. Lynch, for the relator, respondent.
Ernest I. Edgcomb, for the defendant, respondent.
Upon the failure of the relator to give the bond or pay the alimony, as the judgment directed, the wife was entitled to an order causing his personal property, and the rents and profits of his real estate, to be sequestered to enforce payment of her alimony. (Code Civ. Proc. § 1772.) She could also, for his failure to pay the alimony, take proceedings to punish him for contempt, if it was made to appear presumptively to the satisfaction of the court that payment cannot be enforced by means of the sequestration proceeding or by resorting to the security. (Code Civ. Proc. § 1773.) But we think the relator cannot be punished for contempt in failing to execute the bond.
The amount of the alimony, for non-payment of which the relator was committed, was less than $500, and he had been imprisoned three months. He was, therefore, properly discharged upon the writ of habeas corpus, since the Code provides that in such cases no person shall be imprisoned for a longer period than three months. (Code Civ. Proc. § 111.)
There are other provisions of the Code which provide for punishing the disobedience of lawful orders and mandates of the court and non-compliance with its judgments (Code Civ. Proc. §§ 14, 1241, 2266), but they do not apply to the enforcement of the judgment for the giving of security in a matrimonial action. Special provision is made for the enforcement of orders and judgments in such actions, as regards the payment of alimony and giving of security, by the sections of the Code referred to (§§ 1772, 1773), and the remedy there provided for, for enforcing the provisions of the decree requiring the giving of security, we think, is exclusive. ( Stewart v. Stewart, 127 App. Div. 724.) Whether the wife has availed herself of that remedy does not appear, either by a recital in the orders or otherwise; but whether she has or not, that, I think, is her only remedy for the enforcement of the provision of the judgment requiring the relator to execute the bond.
The order should, therefore, be affirmed.
All concurred.
Order affirmed, without costs.