212 P. 645 | Cal. Ct. App. | 1922
Heretofore the petitioner filed a petition in this court asking that a writ of habeas corpus issue, and pursuant to such a request a writ was issued and made returnable before the court. Thereafter the writ was served *199 upon Thomas F. Finn, as sheriff of the city and county of San Francisco, and the said sheriff made his return in which he set forth that on the thirteenth day of November, 1922, he received said Fred W. Kolb under a certain order of the superior court. He then sets forth in words and figures a copy of said order from which it appears that heretofore an interlocutory decree of divorce was duly and regularly entered in a case in which Fred W. Kolb was plaintiff and Vera A. Kolb was defendant; that said decree was based on the defendant's cross-complaint, and adjudged that the defendant was entitled to a decree of divorce and awarded to the defendant maintenance for herself and minor child; that thereafter, on the eighth day of November, 1922, an order to show cause issued out of the trial court and was served on this petitioner, commanding him to appear and show cause on the tenth day of November, 1922, why he should not be punished for contempt of court for failing to pay the maintenance awarded by the terms of the aforesaid interlocutory decree; that the order to show cause was served on the petitioner and thereafter the same was heard in open court and evidence both oral and documentary was introduced; that from the evidence so introduced the court found that the petitioner was, at the time of the hearing, in default in the sum of one hundred dollars in the payment of the moneys theretofore directed to be paid; and that it was also found that the petitioner had the ability to pay the sum of one hundred dollars, and that his failure to pay said sum was willful and deliberate. Then follows the portion of the judgment finding the petitioner guilty of contempt of court and fixing the punishment at five days' imprisonment in the county jail. To the return so made by the sheriff the petitioner did not interpose an answer, nor was there a stipulation that the petition might stand as a traverse, nor was any evidence produced.
[1] Taking the recitals of the return it will be noted that no fact is stated which tends to show that the judgment committing the petitioner is void. But on the record as made the return is all that is before us. In the case entitled In reCollins,
[2] However, as a man's liberty is at stake, we have not failed to examine into each question which counsel, by their arguments, assume to be before us. At the time the divorce case was commenced the wife was residing in New York. Upon being informed of the pendency of the action, she came to California, but the minor child was not brought into this state. After the interlocutory decree was entered the wife returned to New York. It does not appear that the decree purported to give the wife the custody of the minor child. No issue of or concerning its custody is involved. Hence the rule stated in De La Montanya v.De La Montanya,
[3] It was assumed by counsel that the affidavit praying for the issuance of an order to show cause was made by the wife's attorney, and that at least a part of it was made on information and belief. Thereupon it was argued that such a paper is not in legal effect an affidavit. (Gay v. Torrance,
Finally, it is claimed that on the hearing of the order to show cause the testimony showed that the petitioner did not have the ability to comply with the court's order, and that therefore the petitioner should have been discharged. The record does not sustain the contention. The averment of the petition is that the petitioner "had no further funds." It does not appear but what he possessed other properties, real or personal.
It follows that the petitioner should be remanded and the writ discharged. It is so ordered.
Nourse, J., and Langdon, P. J., concurred. *202