162 P. 922 | Cal. Ct. App. | 1916
The petitioner is in custody of the sheriff of Kern County by virtue of a commitment issued out of the superior court of that county. Claiming that his imprisonment is unlawful, he applied to this court for a writ of habeas corpus, which was granted. The commitment is based upon *321 an order made by the superior court on date September 26, 1916, wherein petitioner was required to pay a fine of five hundred dollars as punishment for a contempt of court; and wherein it was further ordered that in default of payment of the fine he be imprisoned in the county jail until the fine is satisfied at the rate of one day's imprisonment for each $2 unpaid of the fine.
Petitioner was sheriff of Kern County for the term ending in January, 1915, when he was succeeded by D. B. Newell, the present sheriff. During the year 1913, one Matthew Bailey commenced an action in the superior court of Kern County against Security Trust Company, a corporation, to recover possession of certain corporation certificates of stock and other documents. Under claim and delivery proceedings in that action, Baker, as sheriff, took possession of that property. Thereafter Bailey applied to the superior court for a peremptory writ of mandate to compel the sheriff to deliver the property to him. In that proceeding a judgment rendered in favor of the sheriff was reversed by this court. (Bailey v. Baker,
On April 8, 1916, an affidavit was filed by Bailey's attorney in the case of Bailey v. Baker, setting forth the facts concerning the award and issuance of the writ of mandate, and that Baker had failed and refused to comply therewith, and praying that a citation issue requiring Baker to show cause why he should not be punished for contempt of court in refusing to comply with said writ. In the affidavit it was stated that Baker refused to perform the acts required by the writ, and informed affiant that he did not have to perform those acts. At that time the superior court refused to issue the citation for contempt, and a writ of mandate was granted by this court directing that the lower court issue the demanded citation. In that proceeding we held (against the contention of the respondent superior court) that the fact that Baker has appealed from the judgment rendered against him in the mandate proceeding of Bailey v. Baker (no undertaking having been given for stay of enforcement of the writ), would not excuse him from performing the acts required by the writ in that proceeding. (Bailey v. Superior Court,
In the above-mentioned proceeding of Bailey v. SuperiorCourt, wherein we directed that the citation issue, the point was presented, but not very fully argued, that Baker having ceased to be sheriff of the county of Kern, no longer had power to perform any official duties, and therefore could not be required to do the things prescribed by the writ of mandate issued to him. On the other side of the question we were referred to Sagely v. Livermore,
There is no doubt in our minds that the word "process," as used in Political Code, section 4171, includes the proceedings *324
which authorize a sheriff to take property in claim and delivery. Section 4319 is contained in the same title with 4171, and declares that " 'process,' as used in this title, includes all writs, warrants, summons, and orders of courts of justice, or judicial officers. . . ." And in section 17 of the same code "process" is defined as "a writ or summons issued in the course of judicial proceedings." In Laughlin v. Thompson,
Our conclusion as to the matters above stated renders it unnecessary in this proceeding to determine other questions proposed in the argument of counsel, and which have to do with the validity of the writ of mandamus as it was issued in this case, assuming that it had been directed to a sheriff then having power to act. Neither are we at this time concerned with the liability of the petitioner on account of his failure while sheriff to deliver to the plaintiff property which the plaintiff was entitled to receive from him.
The petitioner is discharged from custody.
James, J., and Shaw, J., concurred. *325