*1 3,Mar. In Bank. No. 21821. 1952.] A. [L. COURT THE Petitioner, SUPERIOR LEONIS, B.

JOHN Respondent. COUNTY, OF LOS ANGELES III, Shenk, W. O’Hara, John Young, F. Edward R. *2 for Petitioner. and E. L. Searle General, Attorneys Brown, N. and Edmund Fred Howser G. Respondent. Attorney General, for Bayard Rhone, Deputy and councilmen one of the John B.Leonis was SCHAUER, J. contempt in guilty of city found of the of Vernon who were Court, City Vernon v. reviewed in judgment of con ante, p. 243], After the E. L. by counsel tempt specially appeared was rendered he judgment as contempt and Searle moved to set aside acquired him trial court had ground on the that the denied this trial court person. over his The attacks both By now petition motion. review Leonis judgment. denying order motion and judgment are valid. We and have concluded the order that contempt proceeding was cause in the order to show of the that 5, 1949; it directed December issued on be served copy of the order charging contempt and a affidavit the date set five before at least on the councilmen prescribed time within hearing. Leonis was He avoid service. himself to not conceal all. He did or at answering which was verify affidavit, sign and refused never He by the four other councilmen. verified signed and Respondent proceeding. personally at appeared find Leonis jurisdiction to nevertheless had court held that Attorney R. Edward he authorized contempt because other Vernon the four represented and (who also for him the Young did, appear councilmen) Mr. to, and Young’s disputes contempt proceeding. the issue court resolved upon which the trial facts and the pertinent. are therefore Vernon tele- deputy city clerk of 1949, December

On and order him that the affidavit Young and told phoned Mr. Vernon and the members been served on cause had to city council the members city council and that them and the Mr. had asked meetings Leonis had attended no Mr. contempt proceeding. January 3, 1949, and had been on since council February 15, 1949, the council since absence from leave of the other he authorized that no direct there is evidence and his behalf. employ Mr. on members of council Mr. believed knew that is evidence that Leonis There well as the other employed Leonis as he was Young, pur- he knew Mr. members; Vernon council Leonis well appearing behalf of belief, was suant to his knowledge remained others, and that with such as the Young’s representation, or disavow such and did not silent guilty. been found until after the citees authority, Young informed the court and 1949, Mr. December On Leonis; appeared behalf of Mr. opposing counsel because illness Leonis contempt hearing; necessary that it would serve January 5, 1950, caused the answer and which contained lines for prepared, which he had city council, five signatures signed of all members of the to be four than stated, verified members other Leonis. As verify refused to the answer. contempt proceeding was heard and on guilty all of contempt. court found the citees It set for pronouncing date told *3 Young Young that Leonis should that time. Mr. your “I I said, can, will best do the Honor. cannot do it I,can’t carry him,” if won’t come. replied, he and the court will to steps “If he won’t come we then have take such as provides requiring appearance law for his here in court. ’’ imposed He be here at the time possible. should if Young On Mr. advised had that Leonis him his physical told that because of condition he could not pronounced present; the court then sentence. the conclusion of the January 17, five after hear- On been found Mr. guilty, citees had Leonis and after ing Young Young represent was not to him Mr. that wrote to January 24 the proceeding. judg- in the On any capacity in signed and contempt was entered. On ment through new counsel and notice special appearance as to were filed. aside to set motion Young represented Mr. the other mem- had Mr. injunction in pro- and Vernon city council of the bers attorney years. ceedings, personal been Leonis’ for and had Young appeared plead- for Leonis or filed a before had Never having given express authority. without for him ing request, given, but believed he had been Young did not Mr. in authority represent proceeding. Young Mr. and Mr. Leonis are somewhat Affidavits of Young fully conflict as to whether advised Leonis of the pending contempt proceeding and as to Leonis in- Young structed not to file the answer on Leonis’ behalf. the hearing contempt judg- motion to set aside the ment trial court read these affidavits and concluded that “It perfectly apparent he that knew that [Mr. Leonis] Mr. Young representing purported represent him and time, At satisfied, say no the Court is did he to Mr. Young or Young indicate to Mr. that Mr. was not to represent him in compile any proceeding; this not to docu- ments. ... It is true that itself the fact that Mr. was the attorney of record for the defendant in the main case give did him, according opinion, to this Court’s appearance and file an on behalf of Mr. Leonis in contempt proceeding. . . . He did that which he every justified doing to believe he was and was proceeding for the benefit of this contemner as well other proceeding.” in the contemners

The above related conclusions of the trial court are amply supported by only record, excerpts brief which need be mentioned. trial court was entitled to believe the of Mr. averments that he advised Leonis progress institution and proceeding, he that further “advised said John B. Leonis his [Young’s] opinion unnecessary would be him [Leonis] long represented he by counsel”; Leonis did answer; forbid Mr. to file the (Young) requested sign verify Leonis to the answer “then [Young] informed affiant and that physician under care and that sick answer, giving said no other reason than and was under the physician.” was sick care of his seems to have been encourage Leonis’ conduct calculated to Mr. him and advantage to take full Young’s services event that success attended them but disavow them in the event of loss. There is room no *4 fully doubt that Leonis was informed pendency as to the proceedings and nature of the to Mr. Young’s appear good ance faith for circumstances if bound, were not be should expressly have directed appearance represent him; to enter his or instead suggestion, knowing refrained such believed and was on that belief.

531 of Mr. faith complete good as to question is no There ap- as it authority, insofar question of Young, and the against determined fact, has pears to be one of evidence. fully supported by the and is question personal service a further There is requirement which could jurisdictional a Leonis was through counsel and defense appearance by Leonis’ waived a jurisdiction in purpose of on the merits. For the is voluntary appearance of a defendant “The civil action summons and personal service of the equivalent to 416.) (Code Proc., complaint upon him.” Civ. Sec § which, contempt proceedings, 416 not control in tion does (Title III of position in the code the Code according to their Proceedings “Special seem to be Procedure), of Civil which, by inherent Nature,” of Civil but reason of their aspects, “special proceedings been held of a crim (Bridges Superior (1939), v. 14 Cal. inal character” Court 983], grounds, reversed 314 2d on other [94 192]). good 86 L.Ed. No U.S. S.Ct. why purpose appears principle enunciated in section applied view 416 for civil actions should not be here. This Foley supported Foley (1898), Cal. 39 [52 122, Am.St.Rep. 147], P. contended where contemnor punished that he could not be because he was personally. pointed “ap out not served court peared by cause, his counsel in answer to the order upon application, and submitted evidence merits objection per and resisted the same without the want service,” sonal said, “This itself was sufficient to give apply prin over him.” We ciple (It here. Foley is noted the decision in case grounds.) went favor of the contemnor on other presents certificate of clerk expired that his term office while shows which Vernon commitment has been review proceeding to says, portion Therefore, he of the commitment pending. imprisonment he, until council requires his injunction This should be annulled. complies with the man, presented court; to the trial to be matter is a ensue; there will it does not proper action presumed contempt judgment of the time validity go to the rendered, subject which is the matter review. it was petitioner ad- remaining contentions of answered him our decisions versely to *5 Court, ante, p. City P.2d and City Culver [241 243] of Superior Court, post, p. 535 P.2d [241 258]. For the reasons judgment above stated the order and affirmed. J,

Gibson, J.,C. Traynor, J., Spence, J., and McComb, pro tern., concurred.

EDMONDS, J. I concurin judgment affirming the the order denying the motion to set aside the of contempt. Also, for the my reasons stated in concurring and dissenting opinion City Court, ante, of p. 520 243], join I the conclusion that petitioner guilty of contempt. However, any aside from question arising from the change in the official status, I that, believe while still of council, member he made all “arrangements” required by injunction, although not within the time prescribed it. would, therefore, modify striking there- continuing imprisonment. order of

CARTER, I dissent. J. I adopt portion opinion of the District Court of Appeal, District, One, Second Division refers part my of Leonis, lack service on John B. of dissent in this case. petition review, recited of appears as writ

“It a member Vernon, B. Council of that John seriously years, ill for some two had not had been attended meetings January any 3, 1949, Council since on a leave absence because of such had been illness. The cause 5, order was issued on December 1949, appear ordered Leonis the other citees to before January 3, Judge on 1950. This Vickers order said Affidavit and this Order be that ‘a upon specifically person named ... at least five ’ hearing. It before date of said conceded that there petitioner on the was no such service Leonis time. at “According respondent’s brief, ‘On 28, December 1949, judge there conference chambers of the (Vickers). ... It was reported then that all persons except John B. Leonis had served. Thereupon, Edward R. stipulated that he was authorized to John necessary B. that it Leonis and would not be to make service upon him and would for the said John B. serving . .’ At- . necessity of . . . without the court stated to torney ‘also January 1950, un- in the court on B. Leonis John such physical B. condition less ’ the trial did not attend present. could 1950, which 10th and time 11th, held contempt. guilty of the other defendants were found Young, repre- R Attorney Edward “On *6 presented peti- senting Vernon, be to of caused to signature. Leonis tioner Leonis an answer for the latter’s answer; Attorney twice refused to nevertheless filed said in of other four council- answer behalf having signed appear men it. counteraffidavits Affidavits and in attorney’s authority of record reference to to petitioner; court, however, ‘I stated to ’ requested authority. will admit In never reference to this respondent’s lays matter fact, brief com- some stress by mented on Judge repre- Vickers, that ‘Mr. sented Mr. Leonis as a member Council for some ’ years. several whether affidavits are in conflict as to Attorney Young definitely was instructed to petitioner. judgment

“After was entered on Janu- ary 11, registered a letter dated by Attorney instructing sent latter not petitioner any in To re- capacity. this by sponded advising judgment a letter Leonis of the of con- by tempt already you ‘of which I telephone.’ have advised January 26, 1950, petitioner special ap- notice of filed a pearance and contempt judgment, motion to vacate the in denied, judge expressing motion the trial disbelief the assertions petitioner’s contained in affidavit. imposing hardly questioned that a be

“It can contempt of must jail alleged fine for a com- preliminary steps in due by certain preceded be rights proper with for the law, with consideration pliance n may Whatever academic distinctions person. accused aspects civil of con- attempted the criminal and be between proceeding in general, tempt proceedings in or the least essentially criminal at practical application its quasi-criminal nature. in process guarantees

“The well constitutional known due dispensed with. particularly applicable and cannot in Certainly respect this can be no there difference charged private or, defendant individual present ease, alleged dereliction as member of a all cases such council. a defendant is en- upon guarantees titled to stand the constitutional and to upon compliance insist with the law in reference to service process representation in court. Such matters are too reaching justify serious and too far in effect cursory treat- validity ment. of such a must depend upon supposition conjecture. or

“In the instant case it is conceded John B. was not with the order to show cause re contempt, although, as noted brief, ‘there is no conten- tion that Mr. Leonis was either concealing himself to avoid service . . . nor that Mr. Leonis was not a resident of Cali- fornia.’- indeed, Petitioner was stated the court Attorney Young, sick home, and would brought ‘have up in a wheel chair physical ... condition is such that very it makes it him get around, only by difficult for ’ having leg had a amputated, age. but also because of hardly accepted could process service even if so inclined. fundamental step proc- the first and of service of “Since the order to show cause entirely ess as became incumbent on omitted, it then the trial court to be personal particular over assured of defend- *7 pronounce ant before imposing This was imprisonment. fine and not done. All that according end, record, done towards to the was to ac- attorney’s ‘stipulation’ cept an oral that petitioner along represented by with other defendants was such attorney, be necessary petitioner. and that it would therefore not serve may this connection be noted that asso- ciates, eouncilmen, four proc- the other had been with why explanation ess. No B. Leonis was not specifically order, also served has been offered.” case,

Insofar merits of are concerned, I feel that aside from the lack process of service of so far as Mr. concerned, Leonis is should be my annulled for reasons forth dissenting set opinion in Court, ante, p. 522. application rehearing Petitioner’s April denied Carter, J., opinion 1952. was application granted. should be