Thomas v. Superior Court

PULLEN, P. J.

Petitioner seeks by this writ of mandate to compel respondents to hear and determine an order to show cause why one named therein should not be punished for contempt.

It is alleged in the petition that Clyde Thomas and Suzette Thomas were husband and wife-; that an action for divorce was filed and defendant therein, Clyde Thomas, failing to appear, his default was duly entered and an interlocutory decree of divorce obtained. In this decree it was ordered “that defendant pay to plaintiff the sum of fifty ($50.00) dollars per month as alimony for the support and maintenance of said plaintiff until such time as plaintiff may re-marry.” In due time a final decree was entered, containing a like provision but with the following added, “in accordance with property settlement entered into between plaintiff and defendant under date of September 12, 1928”. For some time and until after the entry of the final decree the defendant made the specified payments but subsequently became delinquent in a considerable amount, and there was then issued an order to show cause why Clyde Thomas should not be punished for contempt of court for his failure to make the payments as provided in the interlocutory decree of divorce.

The order to show cause was set and a hearing had thereon in the Superior Court of the State of California, in and for the County of Butte, the Honorable Warren Steele, a judge thereof, one of the respondents herein, presiding. Evidence was received and the cause argued and submitted, whereupon respondent judge dismissed the citation upon the ground that there was no order requiring Clyde Thomas to pay the petitioner any sum as alimony.

Upon the petition containing these allegations petitioner prayed that a peremptory writ of mandate issue to respondents named, commanding them to hear and determine the

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order to show cause, and in particular to determine whether or not Clyde Thomas had the ability to make the payments specified in the interlocutory decree, and after such determination, to make and enter such appropriate order as to said respondents may seem meet and proper.

To the petition respondents have interposed a general demurrer and an answer. We believe, however, the matter may be disposed of upon the demurrer, and we will therefore examine the petition to determine if it contains facts sufficient to state a cause of action, or to .justify the issuance of a writ of mandate.