Silvagni v. Superior Court

Petitioner seeks a writ of pro hibition to restrain the respondent court from taking any further proceedings in connection with the enforcement of an order directing the issuance of a warrant of attachment to bring him before the respondent court.

Petitioner is one of the defendants in an action for declaratory relief concerning a written contract of employment of plaintiffs for legal services. At the conclusion of the trial on September 5, 1957, and while petitioner was personally

Thereafter on September 20,1957, counsel for the petitioner appeared before respondent court and announced that he was appearing on behalf of the petitioner who did not appear at that time in person. Counsel for the plaintiffs advised the court that no assignment of the stock had been made and the record discloses the following proceedings: “The Court : May I hear from you, Mr. Powsner ? Mr. Powsner : I am appearing for Mr. Silvagni. The Court : Did you hear the Court order him to appear in person? Mr. Powsner: Well, I was aware that the Court ordered him to appear and show cause, if any, why he hadn’t complied with the order if he had not, but I believe that under the law, your Honor, on an Order to Show Cause I am entitled to appear. The Court : Let a bench warrant issue for his appearance.” On October 10, 1957, the findings, conclusions of law and judgment were signed and filed and thereafter entered.

We have concluded that the court acted in excess of its jurisdiction in ordering the issuance of the warrant of attachment and that the eommendability of the court’s purpose to maintain control over the person of the petitioner to insure the performance of a judgment to be entered cannot evoke an otherwise nonexistent authority.

The term “bench warrant” is not defined in our codes but as applied to civil actions is generally understood to mean a process issued by the court itself, or from the “bench,” for the attachment or arrest of a person to compel his attendance before the court to answer to a charge of contempt (Code Civ. Proc., § 1212), or for the failure of a witness to attend in response to a subpoena which has been duly served. (Code Civ. Proc., § 1993.)

There is no contention, and there can be none, that the order for the warrant in the matter at bar was predicated upon petitioner’s failure to appear as a witness, inasmuch as the trial was completed at the time of the court’s direction that he return to court in person at a future date. Hence we rule out Code of Civil Procedure, section 1993, as a possible support of the challenged order.

Manifestly the court lacked jurisdiction to issue a warrant of attachment to compel petitioner’s presence to answer to a charge of constructive contempt growing out of his failure to “make, execute, and deliver forthwith an assignment of said 3750 shares of capital stock” to the plaintiffs before the entry of judgment. The oral pronouncement by court on September 5,1957, was not a decision or judgment as written and signed findings of fact and conclusions of law were required. (Code Civ. Proc., § 632; Fuhrman v. Superior Court, 2 Cal.2d 250 , 253 [ 39 P.2d 802 ] ; McConville v. Superior Court, 78 Cal.App. 203 , 208 [ 248 P. 553 ].) The petitioner could not be in contempt for a failure to assign the stock until a judgment containing such provision was entered. (Cosby v. Superior Court, 110 Cal. 45 , 52 [ 42 P. 460 ] ; Neblett v. Superior Court, 86 Cal.App.2d 64 , 66 [ 194 P.2d 22 ] ; Gideon v. Superior Court, 141 Cal.App.2d 640 , 642 [ 297 P.2d 84 ].)

It is contended on behalf of the respondent court and by the real parties in interest that the trial court had inherent power to order the petitioner to be personally present at the date set by the court, and that petitioner’s failure so to appear in person was in and of itself disobedience of a lawful order of the court and constituted a direct contempt and thus authorized the issuance of the warrant of attachment to answer therefor. As we have previously pointed out, the record does not disclose that the warrant was issued upon the ground of such failure to appear, disassociated from petitioner’s omission to perform some act required by the terms of a valid order. Disobedience of any lawful order of court is, of course, a contempt of the authority of the court. (Code Civ. Proc., § 1209, subd. 5.) On the other hand, it is equally elemental that disobedience of a void order made in excess of the jurisdiction of the court does not constitute a contempt. (Kreling v. Superior Court, 18 Cal.2d 884 , 885 [ 118 P.2d 470 ]; McLaughlin v. Superior Court, 128 Cal.App.2d 62 , 65 [ 274 P.2d 745 ] ; Uhler v. Superior Court, 117 Cal.App.2d 147 , 153 [ 255 P.2d 29 , 256 P.2d 90 ].) This contention presents the question whether a trial court in civil litigation has inherent power to order the physical presence of a party before it, other than as a witness, at any stage or stages of the litigation. We are of the opinion that the court has no such power. As the Supreme Court said in Ex parte Gordon, supra, 92 Cal. 478 , at page 480: “In civil proceedings, and even in many criminal proceedings not involving a felony,

It is suggested by the real parties in interest that the court was empowered to exercise jurisdiction over the person of the petitioner in order to keep him from leaving the state, thus to insure a complete determination of the controversy. Civil arrest is the recognized procedure designed to secure the presence of a party until final judgment. (Matoon v. Eder, 6 Cal. 57 .)

We are unable to discover that petitioner disobeyed any valid order of the court so as to constitute either a direct or constructive contempt, and therefore the order for the issuance of the warrant of attachment was invalid and in excess of the jurisdiction of the court. Code of Civil Procedure, section 478, declares that “No person can be arrested in a civil action, except as prescribed in this code.” In re Mulford, 73 Cal.App.2d 453 , 456 [ 166 P.2d 890 ], thus states the fundamental rule: ‘' There is no inherent power in the court to place citizens in jail. The Legislature makes the law on that subject within constitutional limitations. Jurisdiction of courts in the matter of arrest is limited by the Constitution and statutory enactments.” We are unable to find that the order for petitioner’s arrest conformed to any authorized statutory procedure.

Let the peremptory writ issue.

Fox, Acting P. J., and Ashburn, J., concurred.