73 Cal. 97 | Cal. | 1887
The petition merely avers that petitioner was committed to the custody of the sheriff of Alameda County by an order of the Superior Court of said county, made in a certain action therein pending,
The petitioner filed an answer to the sheriff’s return, in which he shows that since his imprisonment commenced he filed his petition in insolvency in another department of said Superior Court, and obtained the usual preliminary order declaring him an insolvent, directing the sheriff to take possession of his property, etc.; and he contends that this last order entitles him to be released by this court. But we do not see how it can have that effect. The thing which petitioner seeks to have determined by this court, in this proceeding, is, that he is unable financially to pay the alimony. But the Superior Court, when it made the contempt order, found as a fact that he was able to comply with the order for alimony, and we would not, upon habeas corpus, inquire into the correctness of that finding. It raises no jurisdictional question. Now, the subsequent initiation of insolvency proceedings, which might turn out to be fraudulent, and which might be discontinued at any time before the appointment of an assignee, is merely additional evidence touching the question.of petitioner’s financial ability. If presented to the Superior Court on • another application for the release of petitioner from ■custody, it might or might not be deemed by that court sufficient to- warrant his discharge, but it cannot be considered here, on this proceeding.
■ Let the petitioner be remanded.