In Re Passalacqua

128 Cal.App.2d 230 (1954) In re JOE PASSALACQUA on Habeas Corpus.

Crim No. 3075. California Court of Appeals. First Dist., Div. Two.

Oct. 20, 1954. Theodore R. Coomber for Petitioner.

Raymond D. Williamson for Respondent.

Warren Sapiro and Allan L. Sapiro for Frances Passalacqua, Real Party in Interest.

DOOLING, J.

This is a proceeding in habeas corpus seeking the release of Joe Passalacqua.

On July 7, 1954, an affidavit was filed in the Superior Court in and for the City and County of San Francisco charging Passalacqua with contempt of court in the failure to pay to his divorced wife a certain sum for the support of his minor child and an additional sum as attorneys' fees as ordered to be paid by an interlocutory decree of divorce theretofore entered. An order to show cause was issued on this affidavit and after a hearing thereon the court by minute order entered on July 23, 1954: "ordered defendant to purge content (sic) by complying [231] with the provisions of a prior order re support and attorneys' fees."

No order was made continuing the contempt proceeding for further action of the court or directing Passalacqua to return to court at any later date. That proceeding was terminated with the order of July 23.

On August 25, 1954, without the filing of any supporting affidavit, a warrant of attachment was issued to bring Passalacqua before the court to show cause why he should not be punished for contempt in "disobeying the mandate of the court." Thereafter, pursuant to such attachment, Passalacqua appeared before the court and was adjudged guilty of contempt and ordered confined in jail until he made the payments found to be owing under the decree.

[1] A warrant of attachment may be issued to bring before the court a person charged with a contempt "not committed in the immediate view and presence of the court" (Code Civ. Proc., 1212) only if "an affidavit shall be presented to the court ... of the facts constituting the contempt ..." (Code Civ. Proc., 1211).