Opinion
Crim. No. 236.
January 19, 1912.
APPLICATION for discharge upon writ of habeas corpus.
The facts are stated in the opinion of the court.
Lewis Cruickshank, for Petitioner.
D. E. Bowman, for Respondent.
Petitioner is shown by the return to be held under a commitment specifying that a certain action came on regularly for hearing on an order to show cause in re contempt, and testimony having been heard on the part of both the plaintiff and the defendant, and it appearing to the satisfaction of the court that the defendant Northern had been guilty of contempt by reason of his refusal to obey the order of the court to pay temporary alimony and attorney's fees, which said order was made on October 16, 1911, and it further appearing to the court that said defendant Northern had ability to pay the same, it was, therefore, ordered, adjudged and decreed that he be committed to the county jail until he should pay to the plaintiff Mildred Northern the sum of $40.
The contempt for a refusal to pay pursuant to an order is one not committed in the immediate view and presence of the court, and under section 1211 of the Code of Civil Procedure, an affidavit presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees, arbitrators, or other judicial officers, is essential as giving the court jurisdiction to hear and determine the proceedings in contempt. Assuming that the case of Northern v. Northern was one in which a judgment for alimony could be rendered, which fact does not affirmatively appear, and that the court made an order requiring him to pay the sum of $40, which fact also does not affirmatively appear, and that said Northern had ability to pay the same, nevertheless the court was without jurisdiction to punish for contempt, in the absence of an affidavit as provided by the section of the code above cited. In proceedings in contempt the jurisdiction of the superior court is limited, and jurisdictional facts must be made to appear in the judgment and the order of commitment. Considering the record, then, as presented in this case, the order made by the court was without jurisdiction, and the petitioner is entitled to his discharge, and it is so ordered.