¶1The plaintiff in error, Lubbering, was tried in the court of common pleas of Hamilton county on charges of contempt of that court. The contempt charged was that said Rubbering had neglected and refused to comply-with the decree of that court when he was ordered to pay to his wife, Mary Rubbering, alimony to the amount of $1.50 per week, and to her attorney, D. D. Robinson, an attorney’s fee of $15.00. The court found the said Rubbering guilty of having failed to pay the alimony to the wife, as charged, and ordered him to pay at once the amount due the wife, to-wit, the sum of $4.50, and an additional sum of $25 00 to be applied in the payment of the expenses of the contempt proceedings, and also the costs of the contempt proceedings, amounting to $16.41, and that in default thereof, ordered him committed to the county jail, to be confined until said sums of money were paid.
¶2We think the judgment of the court should be set aside. The court had no power to order the accused to be confined in the jail until the fine and costs were paid.
¶3Section 5645, Rev. Stat., provides:
“ And ií it be adjudged that he is guilty he may be fined not exceeding $100, or imprisoned not more than ten days, or both.”
¶4And sec. 5646, Rev. Stat., provides:
“When the contempt consists in the omission to do an act which is yet in the power of the accused to perform, he may be imprisoned until he performs it.”
¶5The only contempt charged against Rubbering, which the court found him guilty of, was in not paying the $4.50 alimony to the wife, and if Rubbering had been ordered imprisioued until he paid this amount, we would hold the judgment valid, for we are of the opinion that the evidence shows he could have paid this-amount; but what the court did was to order him committed until he paid $25.00 in the nature oí a fine and the costs of the proceedings in contempt. The fine and costs were simply a judgment for money, and there was no power in the court to imprison as for a contempt on the failure to pay it.
¶6The power to imprison as for a contempt on failure to pajr alimony we think rests on different grounds. Alimony is something more than a • debt, and the best interests of society require that decrees of this nature should have all the power that courts can give for their enforcement. - It is a protection to the family and the marriage relation which is the foundation of our society. We adhere to the ruling made by this court in Effinger v. State of Ohio, 5 Circ. Dec., 408.
¶7Judgment reversed and cause remanded to the court of common pleas to carry this judgment into execution and for such further proceedings as are authorized by law.