Schultz v. Superior Court

MOORE, P. J.

Petitioner seeks to effect the annulment of a judgment of contempt entered by respondents on the grounds that the (1) court had no jurisdiction over petitioner or (2) of the action in which the contempt was adjudicated.

The facts appear to be undisputed that petitioner was sued for divorce on December 27, 1939. Summons was served upon him but he filed no appearance in the action. On August 30, 1944, pursuant to section 581a, Code of Civil Procedure, the court on its own motion dismissed the action. On the following September 11th the court denied the plaintiff’s motion to vacate the order of dismissal. On September 13th she filed her notice of appeal from the order denying her motion to vacate as well as from the order of the court dismissing the action. Having assumed that the action was still pending, on December 4, 1944, pursuant to sections 2021, 2081 and 2055, Code of Civil Procedure, plaintiff filed her affidavit averring that she desired to take the depositions of petitioner and caused the county clerk to issue a subpoena requiring him to appear before a notary public on January 12, 1945, to answer interrogatories relating to the divorce action. The subpoena was served on petitioner on the day of its issuance and notice was also served upon him but not upon either of his attorneys of record.

On January 17, 1945, respondent court issued its order directing petitioner to show cause on January 24th why he should not be adjudged guilty of contempt for his wilful disobedience of the subpoena of December 4, 1944, in that he had

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failed to appear at the time and place named in the process: On January 24th the court made its second order directing petitioner to show cause on February 14th why he should not be adjudged guilty of contempt for disobeying the order of December 4, 1944. On February 14, 1945, petitioner appeared before the court, suggested the death of his “attorney of record” and stated that no notice of the taking of the deposition had been served upon his counsel. The court made no order for petitioner to answer questions propounded to him by the notary but upon the conclusion of the hearing then and there found him guilty of contempt in that he had willfully failed and refused to appear before the notary public at the time and place designated in the subpoena, and fined him $100.