In re Larrabee

This case comes before us on a writ of habeas corpus, the petitioner contending that he is illegally held by the sheriff under an order of the superior court finding him guilty of contempt of court.

The sheriff makes his return that the petitioner is held upon the following commitment: “It appearing to the Court that a judgment was entered on the 22nd day of June 1938 in Dept. 8, of the above entitled court, ordering the defendant Arthur F. Larrabee to pay to the plaintiff $200.00, attorney

The first contention of the petitioner is that there was no competent evidence at the hearing of June 22, 1938, to support the finding that the petitioner had disobeyed the prior order of March 17, 1938. The petitioner has failed to set forth either in his petition or in any traverse the evidence taken at the hearing on June 22, 1938. The rule has been stated in the case of In re Foss, 123 Cal. App. 542 , 544 [ 11 Pac. (2d) 676 ], as follows: “No record of the oral testimony taken upon the hearing upon the order to show cause is before us on this proceeding. The order of commitment recites the facts upon which it was based and those facts must be taken as true.”

The petitioner’s next contention is that the divorce action, out of which the order to show cause arose, had been dismissed on July 14, 1938, and that the court was without jurisdiction on October 3d to entertain any proceedings in said action. Petitioner’s contention is that the order for payment of attorney fees was merely an interlocutory order which fell with the dismissal of the action for divorce, but this contention is not meritorious. The order for attorney fees which had matured was in the nature of a judgment.

The petitioner next contends that he was deprived of due process of law in the hearing on October 3, 1938, (1) in that he was denied his constitutional right to be represented by counsel, (2) in that he was denied a court reporter to record the proceedings, and (3) in that he was sentenced and convicted without any evidence or hearing at that time. As to number (1) he was represented by counsel but his counsel was away at some other hearing and petitioner spoke for himself. As to a court reporter (2) he cites us to Penal Code, section 869. This section makes the appointment of a stenographic reporter within the discretion of the judge, and there is no showing that the discretion has been abused. (3) The statement of petitioner that the court sentenced him without any evidence or hearing is not supported even by his own petition, as the petition shows that the court had before it the affidavit of a Mr. Lyon upon which the order to show cause of October 3d was based, and that there was no answer, counter-affidavits or other evidence on behalf of the petitioner, and therefore the allegations of the affidavit were deemed to be admitted.

Finally, the petitioner contends that he is confined for failing to pay attorneys’ fees to the attorneys who at the time the order was made were attorneys for the wife, and that the order of the court does not direct petitioner to pay attorneys’ fees to said attorneys. There is nothing in the record to support such a contention. The court by its order of June 22d ordered the petitioner to pay to his wife the sum of $200 as attorneys’ fees, and this is the order upon which the petitioner was found guilty of contempt. It must be borne in mind that it was neither the wife nor the former attorneys for the wife against whom the contempt was committed, but the court. There is no merit in the contention that the attorney could not sign the affidavit alleging the contempt. An affidavit charging a person with contempt may be made by any person who is in possession of the facts.

Wood, J., concurred.

McComb, J., dissented.