*1 reassignment knowl course, took the Mattox, of executed to appellant, Van Baton from Mrs. edge of the deed purchasers bona fide November, 1941, MeLanes were but the original contract, assignment them under the reassignment, status under acquired Mattox the same by Mrs. notwithstanding earlier deed appellant. Van Baton to per appeal specific decision on the former proper remedy

formance of the case. herein the law is affirmed. Desmond, J., Shinn, J., concurred. petition rehearing August denied 1946. No. July 22, Dist.,

[Crim. Second Div. Three. 1946.] In re HENRY FELTHOVEN, Corpus. LEE on Habeas *2 Petitioner.

Bernard Lawler for Attorney, and J. Howser, Sullivan, N. District Jere Fred Attorney, Respondent. District for Deputy WOOD, corpus. J. Petition for writ habeas An why petitioner adjudged should order to show not be comply for pendente superior lite order on March court made 20, by required pay was which he certain sums of support child, for his wife and for and attor duly ney’s costs, and issued and peti served pendente provided lite order tioner. the amount payable paid through trustee, the child be should payable paid the amount the wife should be direct to her, attorney’s paid and that fees and costs should be attorney. affidavit, direct to the which the order to based, in part show cause was stated not had paid certain amounts which under accrued order had been served on him by April 25, the sheriff on 1946. hearing upon

At to show cause on June 1946, it was pendente established that the lite 20, upon petitioner was never served and that he was present when said was made. A reference to the interlocutory sheriff’s return that it decree shows was an lite pendente was served divorce that had been served did find that order. The court 20, 1946, when or that he was order of March with the order. of that or that he that order was divorce, petitioner’s in favor of interlocutory An decree of The decree wife, on March made and entered “ following: Custody child, Eonald (a) minor included the sup- month, per Felthoven, (b) dollar, One plaintiff Lee support of Sixty Dollars month for port plaintiff, each child, as follows: 1st payable $30.50 said minor every April 1946, 15th April 1946, and on the $30.50 thereafter, (e) Hundred 15th month One 1st and of each payable attorney’s costs, fees, and fifteen Dollars dollars begin- of each month $15.00 at rate of on the 1st 15th ning April 1946.” recited were 1st The amounts there pay amounts as ordered to same those which under stated pendente expressly lite order. was not amounts the decree that ordered direct, therein. The did not as it lite paid through trustee, or that child *3 attorney’s paid direct for costs should attorney. served copy interlocutory decree was of the April 25, hearing on him on of the order to 1946. At cause, proceeding petitioner’s show motion to dismiss the jurisdiction ground on the of lack of was denied. made according court

Petitioner, minute to the order adjudged upon hearing cause, order was of comply contempt wilfully failing in of of court in imprisonment order,” with “the was sentenced to that county days. five for commitment failing wilfully in guilty of of court was 22, 1946, that order comply order March that with the of knowl- 25, 1946, upon April was served him on that he cause order, of that had been ordered to that con- punished for 1946, why on June should not be said order tempt comply of court in with court, ability comply of that had the county days in the therefore he five that was sentenced to jail.

It appears that commitment the reference inadvertently. It had 22, 1946, of March was not made 20 hearing of March order established at the that petitioner, objected juris- been served on he had to the proved It diction Of the court. also had been that order March of served him. that appears

It the order to show also cause was not based inadvertently on the order of March 20. The affidavit recited, stated, thereof also as above that paid had not certain amounts of accrued which had under the of March 20. order jurisdiction,

Petitioner asserts that the court did have upon which the order to show based, was not served on he was not when the order was and he did not it. He also that the jurisdiction asserts court was without commitment, (1) make the because: No order to show on him with reference served to the order March based; which the (2) commitment was no affidavit alleging any was filed comply failure to order with the (3) March 1946; any no given notice kind was that he was to be held to answer for order disobedience of the 22, 1946; (4) 22, 1946, alleged jail, disobedience of which he was committed require does direct perform him to any acts. deputy attorney, district appearing in opposition to the petition, jurisdiction asserts the court had reason that the was based to show cause 20, 1946, peti- stated that the order March was served argues tioner. He pro- effect the act ceeding hearing, with the it proved after notice of served, irregularity had not been an only jurisdiction did not affect the court. to be seems position affidavit, pro- that if which a ceeding is based, pro- states the order, upon which the ceeding is based, acquires to deprive the liberty, though accused bf his even the state- false, ment as to hearing service if at appears consideration of all the evidence has committed as to similar which has *4 been served.

In punish order to contempt court, for constructive of it appear pro upon contempt must that the order which the ceeding is based has accused, been served on that he present made, when the order was or that he had knowl (Frowley Superior Court, 220, of it. 224 v. 158 Cal. [110

469 violation 20, March as to of The order appear and show to of which court, contempt adjudged guilty of of not be why it made. when was him, nor was not served it. He was of he had shown It was not that order. court as to found to com to committed He was date, namely, March 22. a different an order of ply with .The him, had not but he 22 had been served on March order of ad why he should not appear and show cause to notified March order of as judged guilty of order to base an affidavit which 22, and there was no punish In March 22. to the order of cause as court, appear that contempt of it must constructive charge against proper particular notice of accused P.2d Court, Cal.App.2d 509 Superior (Bryant v. 837]), a sufficient affidavit and that there was Superior (Groves v. base such notice or order to show cause 355]). Court, the basis for the As the order March which was regarding contempt court, petitioner order to it. it, knowledge of had not been served with nor did he have commit- As to the which was the basis for ting jail, petitioner been notified that had not charged court as to that nor regarding made that order.

Apparently deputy district is the contention of the only short attorney similar, that since the two orders elapsed interval time the orders between dates when significance it is immaterial and of no thereof to show cause herein the affidavit referred to the order of March which had not been and did not refer to the committing

served and which was the basis for jail. Although mentioned in the interlocu the amounts tory peti decree of March 22 were the same amounts those tioner was ordered under lite order of although only elapsed interval time short between the orders, dates different the orders were types were made proceedings, different and the consider, by was entitled reason of the order show cause and the affidavit which were served he called to defend only as to the

470 similarity of orders of court and

20. The the shortness of making justify relaxing time the dates of them do not between process which afford the accused due con- the rules of law in tempt matters. proceeding action, civil not a separate proceeding criminal

but a of a nature sum (Hotaling mary Superior Court, character. v. 191 Cal. 127].) 504 P. 29 A.L.R. The affidavit in such [217 proceeding complaint. (Frowley the Supe constitutes v. Court, 158 222 817].) rior Cal. The affi davit, cause, to show findings the evidence and the in contempt proceeding strictly construed accused, and the presumption favor of in favor of the regularity proceedings and the does not apply (Groves Superior Court, matters. v. en clearly fairly apprised titled to be particular ac against cusation him. might be that defenses, upon would have hearing of an order to as to show cause the interlocutory

decree of different from those he would have hearing of an order to show as to pendente lite example, For interlocutory as to the de- cree, might defense, mitigation have asserted as a at least punishment, interlocutory in the attorneys allowing fees was void in such fees allowed legal after the services been rendered. For a further example, if he had been cited to show cause inter- locutory decree, have might as a asserted defense that it expressly stated therein he was ordered to Furthermore, the amounts mentioned therein. circum- interlocutory stances under which the decree was rendered might have been such that he could have asserted that whole decree was void.

Apparently the order to show cause was obtained as pendente lite attorneys order because the matter of therein, attorneys properly and because included pendente wife believed that lite order served. they proceeded fact that had so and later ascertained at hearing that the been served lite order had not justify proceeding did a contempt substitution as to stated interlocutory decree which had been served. As Court, supra, page 569: “We do not Groves at Superior v. tbink should be allowed conviction beyond question that record appears stand unless constituted all the facts exist which found trial court the offense.” punish

The court did not contempt of court as to the did knowl petitioner and he not have not served on

order was jurisdiction to commit did not have of it. The court *6 to to as the petitioner the as had ordered to show cause he not been support to it, in of such an order no affidavit and because had made. show cause been is granted the corpus is and of habeas writ

discharged and his bail exonerated.

Desmond, J.,P. concurred.

SHINN, J. I dissent.The attack the proceedings in the contempt is based defect jurisdiction. had to confer which were essential Petitioner wife, his pay been ordered he had actual knowl ability pay, order, pay of the he had the and refused to wilfully refusing pay was cited for and was found us, guilty, is not must upon evidence which before and which All therefore be deemed sufficient. these facts were process judgment. lack of law. the There was no of due making constituting contempt, namely, The facts it, and presented the order the wilful disobedience of by (Code Proc., 1211), citation Civ. § appeared and and defended was issued against charge. urged

All that is of no claim process is that the affidavit and order to no due date the de- recited the of the order instead date of cree, but the substance of the alleged statement or decree

same. A of the date of disobeyed wholly unnecessary. If the affi- been davit name and order to misstated the judge department it was who made or juris- deprived such errors would not have allowing making my diction. The mistake associates to be date when persuaded themselves that the matter was made enters into the substance what petitioner ordered had been to do and had failed to do. Petitioner knew two months that some before he was cited the court had pay him to wife, ordered certain sums of pay money. he knew was accused of He com- plains process charged of want of due if he with one being crime and of another. convicted This is far What happened, happened, case. all that is that when pay money was cited for failure to as ordered by decree, before, which had been served him weeks days discovered an order had been made two before rendered, substantially decree was money. the same sums prosecuted If misdemeanor, as a an recital in the erroneous complaint of payment the date of the order for would variance, have amounted to a material de- much less have prived jurisdiction. the court of

Jurisdiction by cannot be defeated the failure to take step, taking misstep, respect of a wholly to a non detail in proceedings jurisdiction. essential to confer Mere irregularities, steps, even toas essential do render void contempt judgment brought where the accused has been be fore proven guilty. court and Ah parte Men, has {Ex 77 Cal. 198 380, Am.St.Rep. 263]; Simowiello, In re *7 6 Cal.App.2d 425 402]; P.2d Risner, In re Petitioner is not be released. entitled to spend He days the remainder of the allotted five jail, and in meditation. July 23, Dist, No. First One.

[Civ. Div. 1946.] MILLIE LUMINOSO, LUMINOSO, Respondent, v. ANGELO

Appellant.