269 P. 547 | Cal. Ct. App. | 1928
This is an application for a writ of prohibition to prevent the respondent judge from sentencing petitioner for contempt of court. In an action for divorce wherein the petitioner was defendant he was ordered, on December 1, 1926, to pay to the plaintiff in that action (he having stipulated that the order might be made) as permanent alimony the sum of $750 per month and the further sum of $250 per month for the support and maintenance of a minor child. He was also ordered to carry a life insurance policy in the principal sum of $50,000, the annual premium of which was $616.60 for the year 1928, and to pay plaintiff the sum of $35,000 in cash. Petitioner has another daughter by a previous marriage for whose support he is also under order to pay the sum of $100 per month. Petitioner having failed to pay the $1,000 *179 due on March 1, 1928, for the support of his wife, who is plaintiff in the divorce suit now pending and mother of the child of the marriage there sought to be terminated, the respondent court did on March 8, 1928, make its order requiring petitioner to appear and show cause why he should not be punished for contempt. After hearing the testimony of petitioner, the respondent judge made an order on March 16th finding him guilty of contempt and continuing the matter for sentence to March 27, 1928. On the last-named date further testimony of the petitioner was taken and the matter of imposing sentence was continued until March 30th. It is to prevent this sentence that the writ is sought.
The petitioner contends that the court is without jurisdiction to impose the sentence for two reasons: First, because there is no finding in the minute order to the effect that petitioner had the ability to pay, and, second, that the undisputed testimony shows that he did not have the ability to pay. The respondents deny both of these assertions and take the position that petitioner cannot avail himself of the prohibitive writ but must await the sentence and then seek his relief through either the writ of certiorari or habeas corpus.
The minute order makes no mention whether petitioner had the ability to make payment. It is said, however, in a bill of exceptions which it has been stipulated may be considered on this hearing as the record of testimony offered and received at the hearing and orders and findings of the court, that the respondent judge did "make a finding that said Hulett C. Merritt, Jr., was able to comply with the orders of court theretofore made in the above-entitled matter with reference to the payments of alimony and monies for the care, education and maintenance of the minor child of the parties hereto, found the said defendant guilty of contempt and continued the hearing to March 30th, 1928, for sentence."
[1] It is undeniable that the order adjudging one guilty of contempt must on its face recite facts showing the contempt. (Bakeman v. Superior Court,
It will be observed, first, that the stipulation by which we are authorized to consider the statement referred to recites that it "is the record of testimony introduced and orders and findings of the court on said contempt proceedings." There is no finding, and nothing except the statement that a finding was made. There can be no doubt that the only thing which remains for the trial court to do is to fix the penalty and issue the commitment. If the court had taken these steps it is apparent that the record would not support the judgment in the absence of a finding in the order adjudging petitioner guilty. Such is the effect of the authorities already cited, and such is the deduction of reason. Any other course would leave open to conjecture the question of jurisdiction, contrary to established procedure. From these observations it is apparent that the order adjudging petitioner guilty of contempt is in effect a judgment. It is said in 14 California Jurisprudence, at page 84, that "whether an order is in legal effect a judgment seems to depend upon whether it is a final determination of the rights of the parties as the result of adversary proceedings in which issues are framed and the parties are given an opportunity to present their contentions on the merits." Accordingly, it has been held that orders in probate are in effect judgments when they meet the test thus stated. (Estateof Harrington,
[2] But a finding that he was able to pay was impossible in view of the state of the testimony. The only witness to testify at the hearing was the petitioner. If, as is said in Myers v.Superior Court,
[4] There remains for consideration the question raised by respondents that prohibition will not lie but that petitioner must wait until sentence has been pronounced and then seek the writ of review or habeas corpus. We think counsel's contention in this regard cannot be upheld. The prohibitive writ has been made use of in similar instances, as follows: People v. CountyJudge,
The peremptory writ will issue.
Works, P.J., and Craig, J., concurred.