Ellery v. Superior Court

THE COURT.

A proceeding in

mandamus.

Petitioner brought her action for divorce from William Ellery in respondent superior court, in which she was granted a judgment for separate maintenance, requiring her husband to pay a certain sum per month, together with counsel fees and costs. He failed to pay the maintenance awarded and subsequently, upon an order to show cause why he should not be punished for contempt, he was ordered to pay a sum on account thereof forthwith, which he also failed and refused to do, whereupon he was adjudged guilty of contempt, committed to the custody of the sheriff, and ordered confined in the county jail until the amount last referred to should be paid. He thereupon applied to the District Court of Appeal of the First District for release on

habeas corpus,

which court on August 10, 1937, sustained the commitment, and he was remanded to the custody of the sheriff.

(In re Ellery,

22 Cal. App. (2d) 274 [70 Pac. (2d) 690].)

On or about August 13, 1937, he filed in respondent court, pursuant to sections 1143 et seq. of the Code of Civil Procedure, an application for an order discharging him from custody. Respondent court entertained the application and admitted the applicant to bail. The present proceeding in

mandamus

was brought to compel dismissal of the application and the remand of the applicant to the custody of the sheriff on the ground that respondent is without jurisdiction in the premises.

Petitioner contends that the judgment for maintenance is not a debt and, therefore, the code provisions above mentioned have no application.

It is well settled that such a judgment is not a debt within the meaning of section 15 of article I of the Constitution, which secures a citizen against imprisonment for debt. Nevertheless the duty of support, though not technically a debt, is an obligation which may be enforced by the process of contempt.

(Ex parte Perkins,

18 Cal. 60;

Livingston

v.

Superior Court,