In re Morello

Petitioner seeks his release on habeas corpus on the ground that he is unlawfully imprisoned by the sheriff of Fresno County. The facts may be briefly stated as follows: On April 20, 1931, in an action then pending in the Superior Court of Fresno County, one W. H. A. Truxaw was appointed receiver and placed in possession of certain real property involved in that action. On December 18, 1931, while said receiver was still in possession of said property under appointment by said court, the petitioner herein, without permission of the court, demanded possession of the property and the keys to the house thereon from one Hardwick, who was actually in possession of the property, acting for the receiver, and on that day petitioner took possession of the property. On December 28, 1931, one Levy, who was a defendant in the action in which the receiver was appointed, presented to the court an affidavit setting forth the facts as to the appointment of the receiver and his possession of the property; that about the eighteenth day of December, 1931, the petitioner herein, without authority and against the consent and permission of the receiver and of the defendants, took possession of the property and still remains in possession thereof; that on or about the twenty-second day of December, 1931, the receiver notified this petitioner in writing to remove from the premises and return possession thereof to the receiver; and that at that time the petitioner stated that he cared nothing about court orders and that he was going to keep the property. The court ordered the citation to issue, citing petitioner to appear to show cause why he should not be punished for contempt of court in dispossessing the receiver. The cita

“1. That the aforesaid affidavit of Melville Levy charging Petitioner with contempt of Court is insufficient and does not state facts sufficient to constitute a contempt of Court by virtue thereof.

“2. That the said citation issued by said Clerk is void for the same reason.

“3. That the evidence received by said Court in the hearing of said matter was and is insufficient and does not show that Petitioner committed a contempt of Court.

“4. That said order finding Petitioner guilty of contempt and punishing him therefor is void for the reason that the Court was without jurisdiction to make said order.”

Two questions are thus presented. First, whether the affidavit was sufficient to confer jurisdiction upon the court and, second, whether the evidence is sufficient to show the commission of a contempt.

Taking up the first of these questions, it is alleged in the petition that the order for citation and the citation were based upon this affidavit of Levy and the point is raised that this affidavit is insufficient, in that it does not state facts sufficient to constitute a contempt of court. The only deficiency in the affidavit which is called to our attention or argued by the petitioner is that it is not sufficient because it was not made by the receiver himself, the peti

“When the contempt is not committed in the immediate view and presence of the court, or judge at chambers, an affidavit shall be presented to the court, or judge, of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators, or other judicial officers.” This contention does not particularly commend itself to us for the reason that there has been presented here the entire record of the proceedings in the court below, and from these ■ proceedings it appears that this objection was not there presented, but it does appear that the affidavit was there treated as sufficient. The defense relied on was that no act of contempt was committed since the property was surrendered to the petitioner upon demand, without the use of any force. However, taking up the contention on its merits, the section of the code relied upon plainly states that the matter shall be presented by an affidavit of the facts constituting the contempt or by a statement of the facts by the judicial officer. We are unable to interpret this as meaning that an affidavit which sets forth sufficient facts to constitute a contempt arising through interference with a receiver, must be made by the receiver himself and cannot be made by another person or party who is in possession of the facts. In our opinion, the affidavit here in question was sufficient, as against the attack made upon it, to give the court jurisdiction to proceed in the matter.

While the only question, aside from the sufficiency of the evidence, raised in the petition before us is the sufficiency of this affidavit to confer jurisdiction, in the respecc named, the petitioner in his brief proceeds to argue that no proper service was had upon him, in that the court’s order for a citation directed the service upon him of two affidavits, namely, this one by Levy and another one by Truxaw, the receiver, and that the court did not acquire jurisdiction since the Truxaw affidavit was not served upon him; and also for the reason that the Levy affidavit served upon him did not have attached thereto a copy of “Exhibit A”, which was referred to therein. There is nothing in the record before us, so far as we can find, which shows that copies of both affidavits were not served on petitioner. The affidavit of Levy appears in the original record before us, and it is

The second question presented is whether the evidence is insufficient to show the commission of a contempt of court. The court had before it at- least the Levy affidavit and the answering affidavit of this petitioner. In his affidavit petitioner admits the appointment of Truxaw as receiver and that he was in control and possession of the property until about the eighteenth day of December, 1931. After denying that he took possession of the property without the authority and against the consent of the receiver, the petitioner admits that he is now in possession of the property and alleges as follows:

“Alleges that on or about the 18th day of December, 1931, this affiant went- to the said Receiver and asked the said Receiver for the keys to the house located on said Paradise Vineyard, and that said Receiver turned over the said keys to this affiant voluntarily;

“Alleges that affiant then and there told said Receiver that he was president of Paradise Vineyards, Inc., a corporation, that said corporation was the owner and holder of the fee simple title to said lands and premises known as Paradise Vineyard, that said premises had theretofore been sold to Harry Faith and Melville Levy, defendants in this action, under a written agreement wherein and whereby the said Faith and Levy agreed to make certain payments which they had failed and defaulted in making, and that by reason of said breach the said Paradise Vineyards had a right under said agreement to reenter and take possession of said premises; and that they would immediately do so.”

He then alleges that at the time he took possession of the property there was pending in the superior court a report by the receiver with a petition for his discharge as such receiver, and that the receiver was subsequently discharged. At the hearing, the receiver testified that he had not given possession of the property to the petitioner and had not given him permission to go upon the place. We think a flagrant case of contempt of court here appears, not only from the original affidavit, but from the answer of the petitioner himself. (Strain v. Superior Court, 168 Cal. 216 [Ann. Cas. 1915D, 702, 142 Pac. 62 ].) If it is not contempt of court to take property away from a receiver who has been duly appointed by a court for the very purpose of holding and caring for that property, we are at loss how to name such a performance.

Some contention is made that at the hearing of the contempt proceedings the court refused to hear evidence in favor of the petitioner. While no witnesses testified for the petitioner, the court gave him the widest latitude in cross-examining two witnesses who testified against him, during which the court finally interrupted petitioner’s counsel, whereupon this counsel admitted “This is a little far afield.” Thereupon, the court stated that he was only interested in whether or not the property had been taken from the receiver. The court then announced an adjournment to a later date, whereupon counsel for petitioner stated: “If the Court please, we want to present at that time what actually occurred. We take the position we didn’t take any steps whatever except with consent.” At the next hearing, when the court asked if the matter had been

In his oral argument, counsel for petitioner assumed the blame and stated that the acts committed by the petitioner were done upon his advice. It was attempted to excuse these acts on the ground that the court was about to discharge the receiver in any event. In our opinion, instead of excusing, this tends to aggravate the offense, emphasizing as it does, how unnecessary the acts were. Counsel knew

The petition is dismissed and the petitioner is remanded.

Marks, J., and Jennings, J., concurred.