In re McCandless

Decided October 5, 1911

California Court of Appeal · decided 1911-10-05

<p>PETITION for discharge on writ of habeas corpus.</p> <p>The facts are stated in the opinion of the court.</p>

Key passage — most relied on by later courts

““While it is the duty of a parent to support children of tender years, that he be imprisoned on account of the failure to obey an order of the court in connection therewith, it must affirmatively appear that he has the ability to comply with the order of the court.””

quoted by 1 later decision, including Branham v. State

Relies on Ex parte Cohen · Ex Parte Rowe · In Re Cowden

Good law ✅— No negative treatment on recordhow we know

Decided 1911-10-05

How this case has been cited

Cited by 5 later decisions — most recently July 1949

5 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

THE COURT.

¶1Petitioner, as shown by the return, is in the custody of the sheriff by virtue of a commitment issued on account of petitioner’s failure to make certain monthly payments by the superior court directed for the support and maintenance of his minor children. It nowhere appears in the record, nor in any order or judgment of the superior court in connection with the proceedings, that petitioner has the ability to pay the sum ordered. While it is the duty of a parent to support children of tender years, that he be imprisoned on account of the failure to obey an order of the court in connection therewith, it must affirmatively appear that he has the ability to comply with the order of the court. (In re Cowden, 139 Cal. 244, [37 Pac. 156]; Ex parte Cohen, 6 Cal. 319; Ex parte Rowe, 7 Cal. 175; Ex parte Silvia, 123 Cal. 293, [69 Am. St. Rep. 58, 55 Pac. 988].),

¶2Petitioner discharged.