223 P. 91 | Cal. Ct. App. | 1923
This is a proceeding to review and annul an order of the Superior Court of the City and County of San Francisco directing the issuance of a warrant of attachment to answer for contempt in disobedience of a subpoena duly served.
Petitioner, together with several corporations, is defendant in two actions brought by his wife, Una Margaret Locke Paddon, to secure a divorce from him; also to set aside a certain property settlement agreement between the parties, and also to set aside certain alleged transfers of property to other defendants. Other defendants named are principally corporations of which, it is alleged, petitioner is the alter ego.
Petitioner alleges that he is a resident of Santa Cruz County, more than fifty miles distant from San Francisco; that on May 11, 1923, respondent judge, on affidavit of the *36 attorney for plaintiff in said action, issued an order for the taking of the deposition of petitioner before himself at 4 o'clock P. M., May 21, 1923, and directing the clerk of the court to issue a subpoena commanding petitioner to appear before respondent court and testify in said action, and also requiring petitioner to produce books, records, etc., of said defendant corporations; that the subpoena was issued and served on petitioner the same day (May 11th); that on May 21st, and prior to the time set for the taking of the deposition, petitioner, by his attorney, served on the attorneys for plaintiff and on the respondent judge an affidavit showing that his residence was not in San Francisco but at Palm Beach, Santa Cruz County, and thereupon petitioner declined to appear and testify in said cause; that thereafter and on the same day (May 21st), respondent judge made an order directing the clerk to issue an attachment directed to the sheriff of any county in the state, directing that petitioner be attached and brought before respondent court to answer for his contempt in not obeying said subpoena and in refusing to testify and give his deposition in said cause; that on August 10, 1923, after notice to plaintiff, petitioner moved to set aside the order of May 21st on the ground of lack of jurisdiction of the court to order petitioner's appearance and the taking of his deposition.
From statements contained in the affidavits filed in the lower court, and part of the record before us, we gather the atmosphere of the case. It appears from the affidavit of W. A. Andrews, one of the attorneys of record for Mrs. Locke Paddon, that defendant, William Locke Paddon, is a resident of the city and county of San Francisco; "that heretofore, on the 19th day of December, 1922, plaintiff duly gave notice of the taking of defendant Locke Paddon's deposition . . . and although subpoena issued forthwith upon the giving of said notice, yet, nevertheless, after due and diligent search and inquiry the said defendant witness was not found until the second day of January, 1923, and thereafter, and on the fourth day of January, 1923, when said witness was directed by the said subpoena to appear, the said witness did not appear, but on the contrary wholly failed to attend said deposition or to obey said subpoena in any way or manner whatsoever, on the *37 contrary disobeying said subpoena in every particular; that effort has been continuously made since the fourth day of January, 1923, to locate said defendant for the purpose of serving process upon him . . .; that affiant is informed and believes, and therefore alleges the fact to be, that said defendant is now and has been continuously for a period of months last past, in hiding, and concealing himself for the purpose of avoiding the giving of a deposition." Under this affidavit the respondent court, on May 11, 1923, made the order for the subpoena in question here, which subpoena was issued and served upon the petitioner in the city and county of San Francisco on said eleventh day of May. Upon the hearing to set aside the order of May 21st, petitioner filed five affidavits, two by himself, one each by his two brothers, and one by J. L. Smith, his attorney, each affiant stating upon oath that petitioner is a resident of Santa Cruz County. Mrs. Locke Paddon filed a "reply affidavit," in which she sets forth in detail the abodes of her husband in numerous hotels and apartment houses in San Francisco at various times during the past seven years. She also states that petitioner at one time adopted an alias for the purpose of concealing and hiding his identity so as to avoid the service of process upon him by the court; that on or about the tenth day of June, 1923, he "left the jurisdiction of this court and departed from the State of California to a foreign country, to wit, the province of British Columbia, Dominion of Canada, and ever since continued and now continues to remain away from the State of California and from the jurisdiction of this court, with the intent and purpose to avoid the service upon him of any and all orders or processes of this court." Mrs. Locke Paddon further states that her husband, petitioner herein, is the equitable owner and holder of all capital stock, and all the property and assets of the said defendant corporations. There are further similar allegations, all of which, of course, are denied by petitioner.
Upon said hearing, regularly had, respondent court denied the motion to set aside the order of May 21st upon which the attachment was issued, and said order is still in full force and effect.
Petitioner contends that the order in question is void because it seeks to compel him to give his deposition more *38
than fifty miles from his place of residence, contrary to section
[1] Nothing is better understood than that on this proceeding the single question involved is whether the lower court has exceeded its jurisdiction. If it has not, no matter how grievously it may have erred to the prejudice of the petitioner either in matters of fact or in matters of law, this writ will not afford an avenue of relief. (White v. Superior Court,
[2] Petitioner further contends that the order for attachment is void on its face. He calls our attention to section
Section 1209, paragraph 10, of the Code of Civil Procedure, in its enumeration of the acts which are contempts, includes "disobedience of a subpoena duly served." Section
[3] The further contention is made that the contempt proceeding must fall because the subpoena duces tecum is void. It is argued that the affidavit upon which the order for taking the deposition is based makes no showing of materiality. Section
We are of the opinion that the proceedings had in the court below, in the action entitled Una Margaret Locke Paddon,Plaintiff, v. William Locke Paddon et als., Defendants, which said action is numbered 130,600 in the office of the county clerk of the city and county of San Francisco, state of California, are proper and should be affirmed. It is so ordered, and the writ is dismissed.
Tyler, P. J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on January 19, 1924, and an application *41 by petitioner to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 18, 1924.
All the Justices concurred.