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Brandes v. Superior Court

36 Cal. App. 567 Court Second Appellate District. Decision date 1918-03-22 Docket Civ. No. 2513 English

Delivered by WORKS, J., pro tem.

Contents

Majority

p. 567
[Civ. No. 2513.
Second Appellate District.
March 22, 1918.].
SARAH A. BRANDES, Petitioner, v. SUPERIOR COURT OF SANTA BARBARA COUNTY, Respondent.

Headnote

Contempt—Service op Order Essential.—An order adjudging a party in contempt for failure t'o comply with the terms of an interlocutory decree of divorce is erroneous where a copy of the decree was not served upon such party.
APPLICATION for a Writ of Review originally made to the District Court of Appeal for the Second Appellate District to annul an order of contempt.
The facts are stated in the opinion of the court.
B. F. Thomas, for Petitioner.
Thompson & Robertson, and Robert M. Clarke, for Respondent.

The petitioner was granted a divorce from her husband, H. L. Brandes. The interlocutory decree was, in part, to the effect that Brandes should make certain conveyances of real and personal property to petitioner, and that, “at the time of the execution and delivery” of such conveyances, the petitioner should deliver to a certain bank a certain sheriff’s certificate of sale held by her. Upon the allegation that he had himself complied with the decree, Brandes initiated a proceeding for contempt of court against petitioner on the ground that she had not delivered up the certificate of sale. In the affidavit which instituted the proceeding, Brandes averred that a copy of the decree had been served on petitioner and that demand had been made upon her to comply with its terms. In an answering affidavit, petitioner alleged that the decree was never served upon her and that no demand had ever been made that she deliver up the certificate of sale. Upon the issues thus framed the trial court found with the petitioner, but, nevertheless, it made its order adjudging her guilty of contempt. It is this order which is sought to be annulled in the present proceeding.

p. 568
The action of the trial court was erroneous. “Before a party can be brought into contempt for not complying with an order of court, such order must be served upon him.” (Hennessy v. Nicol, 105 Cal. 138 , 142, [ 38 Pac. 649 , 650].) The order is annulled.

Conrey, P. J., and James, J., concurred.

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