Hughes v. Moncur

This is an application for a writ of review to inquire into the legality of a certain order by respondent adjudging petitioner guilty of contempt and by way of punishment imposing a fine in the sum of one hundred dollars and, in default of payment, to be imprisoned in the county jail until said fine is paid, not to exceed one day for each twenty dollars of said fine. The alleged contempt, as appears from the petition and return thereto, grew out of an action for divorce in which a final decree in favor of plaintiff, Emma D. Clise, against Don M. Clise, was entered, on November 2, 1914, and giving the custody of the two minor children to the plaintiff, Mrs. Clise. Subsequently she became Emma D. Storie, presumably by marriage with L. W. Storie.

On May 24, 1915, Don M. Clise made application for an order modifying the order of November 2, 1914, and praying for an order granting him custody of said children during a portion of the time, to be fixed by the court. On June 4, 1915, the court made an order so modifying the order of November 2, 1914, allowing Don M. Clise the custody of the children from June 1 to August 15 of each year.

On June 5, 1915, L. H. Hughes, petitioner here, attorney for plaintiff in the action for divorce, filed in that action a notice stating that it was the intention of plaintiff to appeal to the district court of appeal from the said order of the court made on June 4, 1915; and, on June 7, 1915, he filed a notice of appeal from said order, under section 941b of the Code of Civil Procedure.

On June 9, 1915, Mrs. F. A. Clise, mother of Don M. Clise, instituted a proceeding entitled—“In the Matter of the Application of Frederick

It appears that, on June 10, 1915, the application of Mrs. Clise came on to be heard, L. H. Hughes appearing for the defendant and L. N. Peter for the applicant. Attorney Hughes testified that he was the attorney for plaintiff in the action for divorce and Avas still her attorney; he called attention to the appeal taken from the order of June 4, 1915, and stated that he had adAdsed his client that it stayed further proceeding's in that matter and that it AAras upon his advice that she had refused to surrender possession of the children. Continuing his testimony, he said: “I will state furthermore that my purpose in taking the children aAvay from the residence of Mrs. Storie on the evening of June 8th Avas for the purpose of making it impossible to have the children for Mrs. F. A. Clise, and I took them before the hour of 6 o ’clock and kept them away from the residence of Mrs. Storie until after the hour of 6 o’clock for about sixty minutes after 6 o’clock for that purpose, and that there was no arrangement between myself and Mrs. Storie as to the taking of them, it was done entirely on my own initiative and done for the purpose stated. . . . Q. You took the children for the express purpose of making it impossible for Mrs. F. A. Clise to get them for the purpose of delivering them to Don M. Clise? A. Absolutely that and no other purpose. ’ ’ He testified further that he was in court during the proceedings of June 7, 1915, when the order was made, “up to and including and until after the court made its order.”

At the close of the hearing the court made an order adjudging Mrs. Emma D. Storie guilty of contempt, “the penalty

In support of the writ it is contended: 1. That the appeal stayed further proceedings upon the order of June 4, 1915, and petitioner was justified in advising his client not to surrender custody of the children pending the appeal; 2. That the alleged contempt was not committed in the presence of the court and no affidavit of facts constituting the contempt was presented to the court as required by section 1211 of the Code of Civil Procedure, which reads as follows: “When a 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 facts by the referee or arbitrators or other judicial officer.” 3. It is also contended that the judge who tried the contempt was disqualified.

1. The notice of intention to appeal, filed on June 5, by attorney Hughes for the plaintiff in the divorce proceeding, was ineffectual for any purpose. (Garner v. Meizel, 22 Cal. App. 256 , [ 133 Pac. 1165 ] ; Boling v. Alton, 162 Cal. 297 , [ 122 Pac. 46 ].) When the notice of appeal was filed, on June 7, the order to appear and show cause in the habeas corpus proceeding brought by Frederick A. Clise had already been made. This proceeding was entirely independent of the action for divorce and independent of the order made in that action and of the order made June 4 and in effect superseded all previous orders on the subject of the custody of these children. The court had jurisdiction to enquire into the question as to whom custody should then be given. Thenceforward the court had control and direction upon this question until finally disposed of, which was effected by its order of June 7. (In re Lee Look, 146 Cal. 567 , [ 80 Pac. 858 ]; Barth v. Clise, 79 U. S. (12 Wall.) 400, [ 20 L. Ed. 393 ] ; Willis v. Willis, 165 Ind. 332 , [6 Ann. Cas. 772, 2 L. R. A. (N. S.) 244 , 75 N. E.

The Clise affidavit was entitled—“In the Matter of the Application of Frederick A. Clise for a Writ of Habeas Corpus on behalf of Thelma Clise and Donald Clise,” and as part of the caption, it states—“Affidavit charging contempt and disobedience to order of court. ’ ’ So far as the title expresses the character of the proceedings the court was as free to act upon it as a basis for contempt against Attorney Hughes as against Mrs. Storie. It is true that in her prayer Mrs. Clise asked for a warrant of attachment against Mrs. Storie “to answer for contempt of said court,” but we do not think the court was precluded from acting upon it against Hughes simply because affiant asked for a warrant against Mrs. Storie. If there were averments in the affidavit affecting Hughes sufficient to constitute a basis for proceeding against him for contempt, the court was authorized to act upon it and issue its citation against him, for the prayer added nothing to the facts stated in the affidavit upon which alone the court could act. The law is stated in Hutton v. Superior Court, 147 Cal. 156 , [ 81 Pac. 409 ], “It is well settled,” said the court, “that where the contempt is committed without the presence of the court, the affidavit of facts forming the basis of judicial action must show on its face a case of contempt; and if it does not, the court is wanting in jurisdiction and the order of contempt is void and will be annulled on certiorari. In such case it is immaterial what may be shown to the court at the hearing, or specified and found by the court in its decree adjudging the accused guilty of contempt. The proceeding is void ab initio. The affidavit or affidavits upon which the contempt proceeding is based constitute the complaint, and unless they, upon their face, charge facts constituting contempt, the court is without jurisdiction to proceed.”

Under the rule here stated it would seem that in determining the sufficiency of the affidavit we cannot consider the admission of the accused that he knowingly and willfully violated the order of the court. But it seems to us that where the accused appeared in person and by attorney and was given full opportunity to be heard, and interposes no objection to the sufficiency of the affidavit (and none was made so far as the record shows) it should receive liberal construction

But we think that the charges against Mr. Hughes were not wholly made on information and belief, and such as were so made had some foundation to build upon. He had been Mrs. Clise’s attorney throughout the proceedings for divorce and continued to be her attorney in all the subsequent proceedings. The affidavit states that affiant was told by his client, Mrs. Storie, that her attorney, Hughes, had advised her not to surrender the custody of the children; affiant saw him take them from Mrs. Storie’s residence in an automobile before the hour at which they were ordered to be delivered to affiant and he kept them away. We think there were circumstances sufficient to justify affiant in averring on information and belief that “L. H. Hughes took the said children and kept them away at the request and with the consent of said Emma D. Storie for the express purpose of preventing affiant from getting the said children at the time fixed by the court and for the purpose of violating said order. ’ ’ These statements were of matters peculiarly within the knowledge of the accused. His intent or purpose in what he did could not reasonably be supposed to be within the personal knowledge of affiant. His outward acts and. the information given affiant by his client

In justice to Mr. Hughes, it may be stated that he no doubt relied upon his notice of appeal as staying all subsequent proceedings affecting the custody of these children and hence frankly admitted having violated the order of the court of June 7, believing he was justified in doing so. In this we think he mistook his rights and must look to the offended court for relief from the effect of his conduct.

3. Petitioner makes the further point that the judge was disqualified from sitting in the case under section 170 of the Code of Civil Procedure, that he was a party to the proceeding. There is no merit in this contention. If we understand petitioner, he claims that the judge instituted The proceeding and that section 1211 of the Code of Civil Procedure confers no such power on the court. We do not regard the proceeding as having been initiated by the judge who heard the matter. There was presented to him an affidavit showing what he regarded as contemptuous conduct toward the court. It was clearly within his province, and his duty as well, to act upon the affidavit if he deemed the conduct of the accused warranted it, and he was not disqualified to hear and determine the matter.

The writ is denied.

Hart, J., and Ellison, J., pro tem., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 29, 1915.