Petitioner is the plaintiff in an action for divorce prosecuted by her against her husband Raul J. Quezada, the real party in interest respondent herein. Raul having failed to make certain payments for child support pursuant to a pendente lite order made by the respondent court, petitioner caused to be issued and served upon him an order to show cause why he should not be held in contempt. Upon the return date of the order to show cause the parties stipulated that the issue might be tried by and before one of the commissioners of the court as a judge pro tempore. Pursuant to the stipulation the commissioner was appointed as such judge. After the trial of the issue the judge pro tempore found that Raul was not in contempt and discharged the order to show cause.
Petitioner now seeks a writ of certiorari to review this proceeding and annul the order.
There is but one jurisdictional question presented by the petitioner; all others being purely matters of alleged error and not subject to review in this proceeding. The sole jurisdictional question presented is: May a civil contempt proceeding be tried by and before a judge pro tempore appointed by the stipulation of the parties in accordance with section 5 of article VI of the Constitution of this state?
It is petitioner's contention that the contempt proceedings are criminal in nature and that therefore the respondent court is without power to appoint a judge pro tempore despite the stipulation of the parties to such appointment. The proceeding in the subject matter was one of a civil contempt, prosecuted for the benefit of the petitioner rather than as a means of compelling respect for the order of the court and to protect the dignity of the court.
(In re Wilson,
In 1928 the People amended section 5 of article VI of the Constitution of this state so as to include the provisions that upon stipulation of the
parties litigant “a
cause in the superior court or in a municipal court” may be tried by a member of the bar as a judge pro tempore if his selection as such a judge is approved by the order of the court in which the
cause
is pending. Prior to the adoption of this amendment to section 5 of article VI of the Constitution the word ‘1 cause ’ ’ as used in the Constitution of this state had acquired the definite meaning of including every matter that could come before the court for decision. (See
In re Wells,
The subject contempt proceeding was ancillary to the divorce action and was a cause which the respondent court had jurisdiction to decide and was one in which the parties litigant (plaintiff and defendant in the divorce action) could stipulate might “be tried by a judge pro tempore.”
The petition for writ of certiorari and the petition for writ of mandate are denied.
White, P. J., and Pourt, J., concurred.
Petitioner’s application for a hearing by the Supreme Court was denied August 19, 1959.
Notes
Assigned by Chairman of Judicial Council.