ME. JUSTICE BUEMAN
delivered the opinion of the court.
This is an appeal from a judgment of the Circuit Court adjudging the defendant, Dan Desaro, guilty of civil contempt for failure to comply with an order for payment of rent and for wilfully damaging the premises.
The facts leading up to the contempt order are as follows:
The defendants, husband and wife, entered into articles of agreement with the plaintiffs on December 20, 1959, for the purchase of a home in Glenview. Upon defendants’ failure to make the required payments, the plaintiffs filed a forcible detainer in the Circuit Court and on December 5, 1960, obtained a judgment for possession.
On May 14, 1962, defendants filed a petition in the nature of a writ of audita querela seeking relief and alleging that although the plaintiffs had secured a judgment for possession they did not exercise their right to possession, but instead agreed with defendants to allow them to continue in possession; that the defendants had paid the plaintiffs $400 per month since December 5,1960, and that not until May 5, 1962, were they served with a writ of restitution; that certain equities were present at this time that were not present when the possession order was entered on December 5, 1960, upon which order the writ was issued. It should be noted that writs of audita querela have been expressly abolished under the Civil Practice Act, Ill Eev Stats 1961, c 110, § 72. All relief heretofore obtainable is now governed by § 72. A petition under this section is the filing of a new action and is subject to the usual rules governing civil cases. Brockmeyer v. Duncan, 18 Ill2d 502, 165 NE2d 294.
On May 29, 1962, the following order was entered from which no appeal was taken:
“This cause coming on to be heard on defendant’s Petition in the Nature of a Writ of Audita Querela filed May 14,1962, and continued to this date, and the Court being fully advised by counsel for the parties hereto,
“It is hereby ordered, adjudged and decreed that defendant’s Petition be continued to June 29,1962, and that defendants pay to plaintiffs the amount of $400.00 for May, 1962, and the amount of $400.-00 for June, 1962, and that said payments be made in advance and that defendants vacate said property on or by June 30,1962.”
The defendants did not pay the rent fixed in the order of May 29th, but did surrender possession of the premises on the 22nd day of June, 1962, and delivered the keys to the premises on June 29th in the presence of the court.
On June 29, 1962, the plaintiffs filed a petition for a rule to show cause alleging that defendants had failed to make payments for the months of May and June, as required by the order of May 29th, and further that an inspection of the premises on June 25th “disclosed that the same had been defaced, marred and destroyed.” An affidavit was attached, setting forth with particulars the damage complained of.
A hearing was then held and testimony of the parties taken. Plaintiff William A. Rychlik and the Chief of Police of Glenview testified as to the nature and extent of the damage which we need not specify here except to say that the damage was extensive and of a nature indicating it was done wilfully. The amount of damage was assessed at $7,000.
The defendant testified that he did not have the $800 with which to pay the rent as directed and that was the reason for his nonpayment. He denied that he, his wife or his son, had anything to do with the damage of the premises, asserting, “I had no knowledge whatsoever and I am absolutely shocked.”
The Court then found defendant Dan Desaro
After the court had reached this finding, further argument of counsel was heard, the end result of which was that defendant agreed to a lie detector examination to determine whether he was telling the truth as to the damage to the property. This was to he in the nature of “a double or nothing gamble.” The Court stated that if the results of the test indicated the defendant was truthful in his denial of the damage, the Court would reconsider its finding. If the results were that defendant was not telling the truth the sentence would be increased to sixty days or until restitution had been made.
The examiner’s findings were that defendant was not entirely truthful in his denials. Thereupon, the court, after hearing evidence,- entered a written order of commitment which recited, among other things, that the defendant failed to pay rent after the court stayed the writ of restitution at defendant’s request, stating, “which wilful and contumacious conduct on the part of defendant, Dan Desaro, is in open defiance of the order of the court”; that the evidence established that “the defendants, including Dan Desaro, have wilfully, knowingly and contumaciously refused to comply with the orders and decrees of this court, and that the defendants, including the defendant, Dan Desaro, caused or failed to prevent the causing of the acts, conditions and damages which the court finds took place while the defendants, including the defendant, Dan Desaro, have hindered, impeded and delayed the administration of justice by this court.”
The order of commitment directs that the defendant be committed to the common jail of Cook County, Illinois, and
“there to remain charged with the contempt of the Circuit Court of Cook County, Illinois, for a period of sixty days for a period of thirty days unless he shall purge himself of said contempt hy delivery to the plaintiffs herein the sum of $800.00 as rent for May and June, 1962, plus the sum of $7,000.00 for damages caused by his wilful and contumacious conduct as aforesaid.”
Defendant urges reversal of the contempt order for one or more of the following grounds. First, the order of May 29th is too vague, indefinite and uncertain to support a basis for a contempt finding. Second, damages may not be awarded by the judgment in a forcible entry and detainer case particularly since there was no pleading in the nature of a joint action proceeding seeking action for damages. Thirdly, the order finding defendant in contempt is actually imprisonment for debt in contravention of Section 12 of Article II of the Constitution of the State of Illinois.
The defendant was found guilty of contempt of court for two specific acts, namely, his failure to pay the $400 for the months of May and June and for wilfully damaging the property. We will consider first whether his failure to pay the $400 as ordered by the Court could result in a contempt finding. In determining the propriety of orders in enforcement of contempt proceedings, it is necessary that each case be viewed in the light of its own peculiar facts. Wick v. Wick, 19 Ill2d 457, 167 NE2d 207. The facts of this case show that the appellant’s only excuse for not paying the $800 as ordered by the Court was that:
Mr. Schub: (Counsel for Desaro) Q. Why did you not pay the $400 for each of these two months at that time, Mr. Desaro ?
The Witness: A.
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ME. JUSTICE BUEMAN
delivered the opinion of the court.
This is an appeal from a judgment of the Circuit Court adjudging the defendant, Dan Desaro, guilty of civil contempt for failure to comply with an order for payment of rent and for wilfully damaging the premises.
The facts leading up to the contempt order are as follows:
The defendants, husband and wife, entered into articles of agreement with the plaintiffs on December 20, 1959, for the purchase of a home in Glenview. Upon defendants’ failure to make the required payments, the plaintiffs filed a forcible detainer in the Circuit Court and on December 5, 1960, obtained a judgment for possession.
On May 14, 1962, defendants filed a petition in the nature of a writ of audita querela seeking relief and alleging that although the plaintiffs had secured a judgment for possession they did not exercise their right to possession, but instead agreed with defendants to allow them to continue in possession; that the defendants had paid the plaintiffs $400 per month since December 5,1960, and that not until May 5, 1962, were they served with a writ of restitution; that certain equities were present at this time that were not present when the possession order was entered on December 5, 1960, upon which order the writ was issued. It should be noted that writs of audita querela have been expressly abolished under the Civil Practice Act, Ill Eev Stats 1961, c 110, § 72. All relief heretofore obtainable is now governed by § 72. A petition under this section is the filing of a new action and is subject to the usual rules governing civil cases. Brockmeyer v. Duncan, 18 Ill2d 502, 165 NE2d 294.
On May 29, 1962, the following order was entered from which no appeal was taken:
“This cause coming on to be heard on defendant’s Petition in the Nature of a Writ of Audita Querela filed May 14,1962, and continued to this date, and the Court being fully advised by counsel for the parties hereto,
“It is hereby ordered, adjudged and decreed that defendant’s Petition be continued to June 29,1962, and that defendants pay to plaintiffs the amount of $400.00 for May, 1962, and the amount of $400.-00 for June, 1962, and that said payments be made in advance and that defendants vacate said property on or by June 30,1962.”
The defendants did not pay the rent fixed in the order of May 29th, but did surrender possession of the premises on the 22nd day of June, 1962, and delivered the keys to the premises on June 29th in the presence of the court.
On June 29, 1962, the plaintiffs filed a petition for a rule to show cause alleging that defendants had failed to make payments for the months of May and June, as required by the order of May 29th, and further that an inspection of the premises on June 25th “disclosed that the same had been defaced, marred and destroyed.” An affidavit was attached, setting forth with particulars the damage complained of.
A hearing was then held and testimony of the parties taken. Plaintiff William A. Rychlik and the Chief of Police of Glenview testified as to the nature and extent of the damage which we need not specify here except to say that the damage was extensive and of a nature indicating it was done wilfully. The amount of damage was assessed at $7,000.
The defendant testified that he did not have the $800 with which to pay the rent as directed and that was the reason for his nonpayment. He denied that he, his wife or his son, had anything to do with the damage of the premises, asserting, “I had no knowledge whatsoever and I am absolutely shocked.”
The Court then found defendant Dan Desaro
After the court had reached this finding, further argument of counsel was heard, the end result of which was that defendant agreed to a lie detector examination to determine whether he was telling the truth as to the damage to the property. This was to he in the nature of “a double or nothing gamble.” The Court stated that if the results of the test indicated the defendant was truthful in his denial of the damage, the Court would reconsider its finding. If the results were that defendant was not telling the truth the sentence would be increased to sixty days or until restitution had been made.
The examiner’s findings were that defendant was not entirely truthful in his denials. Thereupon, the court, after hearing evidence,- entered a written order of commitment which recited, among other things, that the defendant failed to pay rent after the court stayed the writ of restitution at defendant’s request, stating, “which wilful and contumacious conduct on the part of defendant, Dan Desaro, is in open defiance of the order of the court”; that the evidence established that “the defendants, including Dan Desaro, have wilfully, knowingly and contumaciously refused to comply with the orders and decrees of this court, and that the defendants, including the defendant, Dan Desaro, caused or failed to prevent the causing of the acts, conditions and damages which the court finds took place while the defendants, including the defendant, Dan Desaro, have hindered, impeded and delayed the administration of justice by this court.”
The order of commitment directs that the defendant be committed to the common jail of Cook County, Illinois, and
“there to remain charged with the contempt of the Circuit Court of Cook County, Illinois, for a period of sixty days for a period of thirty days unless he shall purge himself of said contempt hy delivery to the plaintiffs herein the sum of $800.00 as rent for May and June, 1962, plus the sum of $7,000.00 for damages caused by his wilful and contumacious conduct as aforesaid.”
Defendant urges reversal of the contempt order for one or more of the following grounds. First, the order of May 29th is too vague, indefinite and uncertain to support a basis for a contempt finding. Second, damages may not be awarded by the judgment in a forcible entry and detainer case particularly since there was no pleading in the nature of a joint action proceeding seeking action for damages. Thirdly, the order finding defendant in contempt is actually imprisonment for debt in contravention of Section 12 of Article II of the Constitution of the State of Illinois.
The defendant was found guilty of contempt of court for two specific acts, namely, his failure to pay the $400 for the months of May and June and for wilfully damaging the property. We will consider first whether his failure to pay the $400 as ordered by the Court could result in a contempt finding. In determining the propriety of orders in enforcement of contempt proceedings, it is necessary that each case be viewed in the light of its own peculiar facts. Wick v. Wick, 19 Ill2d 457, 167 NE2d 207. The facts of this case show that the appellant’s only excuse for not paying the $800 as ordered by the Court was that:
Mr. Schub: (Counsel for Desaro) Q. Why did you not pay the $400 for each of these two months at that time, Mr. Desaro ?
The Witness: A. Well, I presumed and understood that I had to move, and I didn’t have the money. I had to find a place to live.
The Court: That’s no excuse.
The Witness: And that’s all I have.
This mere statement of inability to pay is, as was pointed ont by the trial judge, “No excuse.” The burden is upon the one charged with contempt to prove his inability to comply with the order by definite and explicit evidence. Harrigan v. Stone, 237 Ill App 314, 320. Indeed, it has been stated that a party claiming inability to pay as a defense must submit to the court a detailed statement of his affairs. People v. Zimmer, 238 Ill 607, 614, 87 NE 845. The appellant failed to do any of these things and expects this Court to verify his inability to pay by his mere self-serving statement. As was said by the Court in Harrigan v. Stone, 237 Ill App 314, 325:
If the decrees of the courts are to rest so lightly upon the shoulders of those against whom they are rendered and if they can be defeated by such excuses as are offered by plaintiff in error then property rights and property interests would soon become insecure.
The record shows that the defendants were served with a writ of restitution on May 5,1962, based upon a judgment for possession that was entered in the same proceeding on December 5,1960. The defendants by their petition in the nature of a writ of audita querela raised a question as to whether the plaintiffs who voluntarily permitted the defendants to remain in possession abandoned their prior right to execute the writ of restitution and thereby caused the court to lose the jurisdiction to enforce it. The petition of defendants was presented on May 14th and continued to May 29th. At that date, the defendants, rather than questioning the jurisdiction of the court invoked it and apparently received the relief requested. One cannot apply to a court for its assistance without submitting to its jurisdiction. Parties cannot waive a lack of jurisdiction of the subject matter, but they may voluntarily submit their persons to the jurisdiction and they may do so by conduct as well as by words. Crandall v. Kraetzer, Fischer & Co., 155 Ill App 496.
Next, appellant urges that the contempt order violates his constitutional rights since it amounts to an imprisonment for debt. In so thinking the appellant suffers from an error in characterization. This case is not one in which the appellant is being imprisoned for his failure to pay a debt. His imprisonment is rather a result of his attitude of contempt and scorn for the orders of the trial court. The facts before this Court show that the appellant was treated in a most lenient and sympathetic manner when, over the strenuous objections of opposing counsel, he was granted his request for additional time in which to vacate the premises in return for his promise to pay $800. The court ordered defendant to pay the money solely because defendant had, by the petition in the nature of a writ of audita querela, stated he was in fact able to do so. This was the relief requested by defendant. His answer to the cooperation and assistance of the court was a total and unexplained disregard of its order. Defendant asserts he did not understand the order. However, at the hearing below defendant made no contention that he did not understand the order. If a party understands what is required of him under an order he cannot then assert that the order is too vague.
The power to punish for contempt exists merely for the purpose of enabling the court to compel due decorum and respect in its presence and due obedience to its judgments, order and process. 12 American Jurisprudence, Contempt § 48. This Court is satisfied that the actions of defendant as set out above provide sufficient reason for the invocation by the trial court of its powers to punish for contempt.
This leads us to that part of the contempt order committing the defendant to the County Jail for sixty days unless he shall purge himself of contempt by the payment of $7,000 for property damages. Courts have no right to deprive individuals of their liberty unless clearly required to do so. Goodwillie v. Millimann, 56 Ill 523. The order of May 29th upon which a rule to show case was entered, ordered the defendant to pay $800 and to vacate the premises before June 30th. The defendant did vacate the premises as ordered. We are not prepared to say that there exists any authority to imprison for contempt of court for damaging property not under the custody of the court. As was said in the case of Universal Credit Co. v. Antonsen, 374 Ill 194, 202, 29 NE2d 96.
“When property has been replevied, and the case in which the writ issued is pending and undetermined, the property may be regarded as in the custody of the law, and the court has the right to see that it is not interfered with; but here, the court had no jurisdiction over the property. It had never come into the hands or possession of any officer of the court.”
In addition it should be noted that the alleged actions of the defendant in damaging the property do not in any way violate the provisions of the May 29th order upon which the rule to show case was based.
We consider the filing of the petition in the nature of a writ of audita querela as the commencement of a new and independent suit in which the petition stands as a complaint. Calkin v. Roberts Park Fire Protection Dist., 402 Ill 579, 84 NE2d 841. Instead of a petition for a rule to show cause the plaintiff should have been permitted to file proper pleadings as in any civil suit and the defendants given an opportunity to reply and he tried by a court or jury on tbe property damage question.
For tbe reasons stated tbe order of tbe Circuit Court is affirmed in part and reversed in part and tbe cause is remanded to that court for proceedings consistent witb tbe views expressed in tbis opinion.
Affirmed in part, reversed in part and remanded.
MURPHY, J, concurs. Defendants in this action were both husband and wife, but only the husband was ordered imprisoned.