In Re Davis

[452]

CARTER, J.

Petitioner in this case was found guilty of violating the preliminary injunction from which the appeal was taken in

Northwestern Pacific Railroad Co.

v.

Lumber & Sawmill Workers’ Union, ante,

p. 441 [189 P.2d 277], and punishment for contempt was imposed. The alleged violation by petitioner of the injunction occurred in Humboldt County in the northern part of this state. The picketing forming the foundation of the preliminary injunction occurred in Sonoma County.

All questions of the validity of the preliminary injunction have been resolved against petitioner in

Northwestern Pacific Railroad Co.

v.

Lumber & Sawmill Workers’ Union, supra.

Petitioner makes additional contentions in this proceeding.

He asserts that his action in violating the preliminary injunction was justified by reason of his alleged right to rely upon an order of the Superior Court of Humboldt County denying an application for a preliminary injunction in an action substantially the same as the Sonoma County action involved in

Northwestern Pacific Railroad Co.

v.

Lumber & Sawmill Workers’ Union, supra.

After denial of the application in the Humboldt County action plaintiff appealed, but it dismissed the appeal and the action. Under these circumstances there is plainly no final judgment on the merits. Hence the action of the Humboldt County court is of no avail to petitioner.

Petitioner asserts that the affidavit forming the basis for the contempt citation was insufficient and hence the judgment of contempt is invalid. It is true, as pointed out by petitioner, that for the court to have jurisdiction of a contempt proceeding where the contempt is committed outside its immediate view and presence the affidavit forming the basis for the proceeding must sufficiently charge the alleged acts constituting the contempt, and a lack of essential facts cannot “be cured by proof upon the hearing.”