84 Cal. 50 | Cal. | 1890
The petitioner was adjudged guilty of contempt by the superior court of Sacramento County, and seeks to be discharged from custody by this proceeding, on the ground that the commitment and judgment are void. The commitment is a certified copy of the judgment. The recitals in the judgment show that on the twenty-second day of August, 1869, an action of claim and delivery was commenced by the petitioner against Salome E. Acock and Nellie T. Halsey for the recovery of some wheat and barley then in the possession of one W. K. Lindsay, as the agent of the defendants in said action; that a proper affidavit and undertaking on claim and delivery were made by the plaintiff in said action, and an order was indorsed upon said affidavit, directed to the sheriff, requiring him to take said property from the possession of the defendants; that, in pursuance of said order, said property was taken by the sheriff into his possession and held by him until the fourth day of September, 1889; that on August 30th, seven days after the service of the summons and other papers in said action upon defendant Halsey, the defendants therein executed and delivered to the sheriff an undertaking, which was afterward approved by the judge of said superior court, for the delivery of said property to him; that this undertaking was approved, after a regular justification of the sureties, on the third day of September, 1889, and was caused to be filed by the judge on that day; that “ thereupon said Acock wrongfully, and for the purpose of preventing the return of
The petitioner claims that the facts stated in the judgment are not supported by the testimony taken at the hearing, but admits that, under the decisions of this court, they are conclusive in this proceeding. He contends that the judgment is void for the following reasons: 1. Material allegations of the affidavits are made upon information and belief; 2. The facts alleged do not show anj abuse of the process of the court, or any offense for which the court could adjudge him guilty of contempt.
1. Whatever the rule may be with respect to the rights of persons held for examination under an attachment which has been issued upon an affidavit made on information and belief alone, we do not think that, after a full and fair hearing, in which the prisoner has been given full opportunity to present his defense to the charge made against him, a judgment of conviction can be held to be void because some of the charges are made on information and belief. It would be impossible in many cases of contempt committed out of the presence of the court to secure the apprehension or conviction of the guilty parties, if every fact essential to sustain the judgment were required to be stated in positive terms. In the case at bar, if the moving parties had been required to state positively upon oath that the petitioner was the person who removed the grain, the proceedings probably could not have been instituted. We think, at least, that after judgment the point made is not well taken. (Ex parte Ah Men, 77 Cal. 198; Ex parte Kearney, 55 Id. 228.)
2. A great many reasons are assigned for the contention that the facts stated constitute no offense. It is said that the action had been dismissed, and no contempt could be committed unless the litigation was pending; that if any offense was committed, the remedy was by
We have carefully considered all of these points, and are unable to agree with counsel for petitioner. If the facts stated are true,—and they cannot be assailed here as contrary to the evidence,—the acts of petitioner were contempts within the meaning of section 1209 of the Code of Civil Procedure. That section provides that “the following acts, .... in respect to a court of justice or proceedings therein, are contempts of the authority of the court: .... 4. Deceit or abuse of the process or proceedings of the court by a party to an action or special proceeding; .... 7. Rescuing any person or property in the custody of an officer by virtue of an order or process of such court.” (See also Biggs v. Garrard, 6 B. Mon. 484; 44 Am. Dec. 778; King v. Barnes, 113 N. Y. 476.) And if the facts stated are true, it is clear that the petitioner could not, by a dismissal of the action, shield himself from the legal consequences of his acts. The fact that the petitioner may be prosecuted in criminal and civil actions does not prevent a prosecution for contempt. A party may be liable civilly and criminally for an assault upon an officer in open court, and at the same time may be punished for the indignity laid upon the court.
We think the findings of fact are within the issues. It was alleged that the petitioner deceived the officer of
The summons was not served on the defendant S. E. Acock until August 26th, and she made a demand and gave an undertaking for the return of the property on August 30th. Each one of the defendants was entitled to claim the redelivery of the property at any time within five days after service of notice upon her. Upon the giving of the undertaking within the five days after service upon defendant Acock, it was the duty of the sheriff to hold the property until the sureties justified, and upon such justification to turn it over to her. (Code Civ. Proc., secs. 514, 515.) It is found that, after the giving of said undertaking and justification by the sureties, the petitioner knowingly, and for the purpose of preventing the return of the property to the defendants in the action, removed the property from Lindsay’s ranch and dismissed the action.
We have examined the cases cited by counsel for petitioner, and find nothing in them which, taken in connection with the provisions of our code, cited above, support the contentions made herein against the validity of the judgment.
The prayer of petitioner is denied, and the petitioner is remanded into the custody of the sheriff of Sacramento County.
McFarland, J., Sharpstein, J., Fox, J., and Thornton, J., concurred.