In re McKenna

This is an application for a writ of habeas corpus based principally upon the ground that the trial court was without jurisdiction to punish petitioner for contempt. The commitment was issued after the „ court had made two orders, one of which found the petitioner guilty of contempt of court for failure to pay alimony, and sentenced the petitioner to two days in the county jail, which order was afterward modified by the second order, and was made on- application of petitioner, permitting him to pay $5 per month until he should have paid the sum of $60 ordered to be paid by him by an order made April 25, 1930, on which he had paid the sum of $10. Upon hearing of an order to show cause why plaintiff should not be punished for contempt, had on April 29, T931, the court issued

The only judgment in this case ordering. alimony is the judgment which was made by alteration of the original judgment, which alteration was made by stipulation entered into between the parties. The action was one for divorce, wherein the petitioner was granted a divorce from his wife on the ground of extreme cruelty. No order was made at that time providing for alimony and there were no children of the marriage. It was held in Lampson v. Lampson, 171 Cal. 332 [ 153 Pac. 238 ], and is provided in section 139 of the Civil Code, that the court has no jurisdiction to grant permanent support to a wife when the divorce is granted to the husband for the fault of the wife.

In this case the judgment was entered by consent, which provided for permanent support of the wife. The court was without jurisdiction to grant permanent support to the wife by reason of the fact that the divorce was not granted to her, but was granted to her husband for her fault, and jurisdiction cannot be conferred upon the court by consent or stipulation (Yore v. Superior Court, 108 Cal. 431 [ 41 Pac. 477 ]), and the parties cannot malee an effective waiver of such lack of jurisdiction by stipulation. (Marin Municipal Water Dist. v. North Coast Water Co., 178 Cal. 324 , at 328 [ 173 Pac. 469 ]; In re McCarty, 154 Cal. 534 [ 98 Pac. 540 ].)

The petitioner is ordered discharged.

I concur in the judgment. It is clear, however, that the commitment under which the petitioner was placed in custody is not based upon the two orders mentioned in the opinion. The commitment is itself a copy of the order finding the defendant guilty of contempt and directing his imprisonment therefor. This commitment or order purports to find that the defendant is in contempt by reason of his failure to comply with a judgment entered on the seventh day of January, 1929, ordering that the plaintiff pay the defendant $60 per month. But said judgment contained no such order. It is conceded that the judgment of January 7th was an interlocutory decree, merely determining that the plaintiff husband was entitled to a

I agree that the petitioner should be discharged from custody.

Houser, J., concurred.