ASHBURN, J., Dissenting. I am unable to concur in the majority opinion. Respondent sheriff stands upon a written commitment which is attached to the return. Essentially it supports petitioner’s claim that he has been adjudged guilty of contempt for failure to comply with an order made on October 7, 1955, directing him to vacate the family residence on or before July 20, 1955. He argues that it was and is impossible for him to comply and hence the judgment of contempt is void for want of jurisdiction.
The prevailing opinion holds in effect that the commitment and the judgment, the terms of which are therein recited, are to be construed liberally and hence the direction to vacate on or before July 20, 1955, is to be construed as an order to [138]vacate forthwith, and the phrase “on or before July 20, 1955” disregarded as surplusage. Whatever one may think about the strictness of the prevailing contempt law; of this state, the applicable principles have been declared repeatedly by the Supreme Court and we are not free to disregard them. They do not warrant any such holding as that of the majority herein.
The basic rules here applicable are stated in Hotaling v. Superior Court, 191 Cal. 501, 506 [217 P. 73, 29 A.L.R. 127]: “In reviewing this proceeding, the charge, the evidence, the findings, and the judgment are all to be strictly construed in favor of the accused (Schwarz v. Superior Court, supra [111 Cal. 106 (43 P. 580)]), and no intendments or presumptions can be indulged in aid of their sufficiency. (Frowley v. Superior Court, supra [158 Cal. 220 (110 P. 817)].) If the record of the proceedings, reviewed in the light of the foregoing rules, fails to show affirmatively upon its face the existence of all the necessary facts upon which jurisdiction depended, the order must be annulled. (Frowley v. Superior Court, In re McCarty [154 Cal. 534 (98 P. 540)], and other cases above cited.)” At page 508 the court quoted Dewey v. Superior Court, 81 Cal. 64 [22 P. 333], as follows: “ ‘This order we think was clearly in excess of the jurisdiction of the court. It is an order which can only be made upon and in consequence of a conviction for-contempt, which “consists in the omission to perform an act which is yet in the power of the person to perform,” and which has been required by the terms of the original order which the party is charged with having violated. (Code Civ. Proc., § 1219.) The original order or injunction did not require him to perform the act which is by this order enjoined upon him, and for the nonperformance of which it is now ordered that he be imprisoned.’ (Italics ours.)
“If, in the Dewey case, a command to remove the dam could not be implied from a decree enjoining the further maintenance thereof, certainly in the instant ease a command to transfer the stock on the boobs to the Union Trust Company is not to be implied from a purely declaratory adjudication that Mrs. Hotaling is the owner and entitled to the possession thereof. That case, which has never been overruled, stands as express authority for the rule that to constitute a constructive contempt of the sort here claimed there must have been an ‘omission to perform an act which has been required by the terms of the original order.’ ” While the language [139]first quoted concerning strict construction of the “charge, the evidence, the findings, and the judgment” doubtless refers to the record made in the contempt proceeding itself, the quotation from page 508 shows that a judgment whose violation is charged as contempt cannot be aided by implications, thus applying to the original judgment or order, as well as the contempt proceeding, the general rule that “no intendments or presumptions can be indulged in aid of their sufficiency.” The doctrine is thus phrased in Raiden v. Superior Court, 34 Cal.2d 83, 86 [206 P.2d 1081] : “Because of the penalties imposed a contempt is criminal in nature and presumptions or intendments may not be indulged in support of the order.” Recognitions and applications of the rule are found in an unbroken line of eases, which includes Freeman v. Superior Court, 44 Cal.2d 533, 536 [282 P.2d 857]; In re Wells, 29 Cal.2d 200, 201 [173 P.2d 811]; Weber v. Superior Court, 26 Cal.2d 144, 148 [156 P.2d 923] ; Wilde v. Superior Court, 53 Cal.App.2d 168, 177-178 [127 P.2d 560]; Warner v. Superior Court, 126 Cal.App.2d 821, 824 [273 P.2d 89]. The Wells ease, supra, says at page 201: “In such cases the rule that mere presumptions and intendments are to be indulged in support of ordinary judgments does not apply.” In In re Vallindras, 35 Cal.2d 594, 596 [220 P.2d 1], petitioner was discharged on habeas corpus1 from imprisonment for violation of an order which “fixes no amount which Vallindras must pay to purge him from contempt and secure his release,” —this because of unfilled blanks in the original order. In the later civil action of Vallindras v. Massachusetts etc. Ins. Co., 42 Cal.2d 149, 152 [265 P.2d 907], the court said of the same order: “By examination of the substance of the entire order, including the recitals as above set forth, it is apparent that the act required of Vallindras, the performance of which would end the term of his imprisonment, was intended to be the payment of the sum of $250 which was mentioned in the recitals.” This emphasizes the fact that intendments cannot be indulged in favor of the original order, no more than they may be in reference to the judgment of contempt.
The ease of Lazar v. Superior Court, 16 Cal.2d 617, 622 [107 P.2d 249], upon which the majority opinion relies, seems to me not opposed to the foregoing views. What it holds is that a judgment which is alleged to have been violated must receive [140]a sensible interpretation, is not to have the life construed out of it. But the court was not considering or discussing an elimination of express words of the judgment in aid of a charge of contempt for alleged violation of its terms.
It is firmly settled that inability to comply with a court order is a complete defense to a contempt charge based thereon. (Ex parte Overend, 122 Cal. 201, 203-204 [54 P. 740]; Van Hoosear v. Railroad Com., 189 Cal. 228, 233 [207 P. 903] ; 12 Cal.Jur.2d, § 49, p. 70; 17 C.J.S., § 19, p. 24.) If the Gideon judgment of October 7, 1955, means what it says—that petitioner must vacate the home on or before July 20, 1955, petitioner manifestly could not perform and there could be no contempt. To my mind the cases above cited establish that the words “on or before July 20, 1955” cannot be ignored and that the judgment of contempt is void.
There is also an uncertainty in the record which renders the commitment fatally defective. The charging affidavit and the interlocutory decree are not before us, but the commitment upon which respondent stands recites the basis of the contempt conviction and does so in such a way as to leave uncertain whether petitioner was convicted of a refusal to obey the minute order of July 7, 1955, or the interlocutory decree of October 7, 1955, or whether it was a refusal to vacate as ordered on or before July 20, 1955, or to do so forthwith upon entry of the judgment of October 7, 1955. The text of the commitment is set forth in the margin.2 The changes in the first recital reflect dubiety as to whether the commitment is based upon violation of a minute order or of the interlocutory [141]decree; the judge seems finally to have come to rest upon the judgment of October 7th. However, there is a recital which follows immediately after the date July 20, 3 955, to the effect that the defendant was present at the time of trial and heard said order pronounced, or that said order was personally served upon him on July 7, 1955,—all of which can refer only to an oral order or a minute order, for those are the things which occurred, if at all, three months before the judgment. This being a situation in which findings and judgment must be made, the oral pronouncement of the judge was not effective until the interlocutory judgment was signed and filed. (See Miller v. Stein, 145 Cal.App.2d 381, 384 [302 P.2d 403]; Phillips v. Phillips, 41 Cal.2d 869, 874 [264 P.2d 926] : Neblett v. Superior Court, 86 Cal.App.2d 64, 66 [194 P.2d 22]; Cosby v. Superior Court, 110 Cal. 45, 52-53 [42 P. 460] ; Wutchumna Water Co. v. Superior Court, 215 Cal. 734, 739 [12 P.2d 1033].) Contempt could not be based upon such an order. There is no suggestion in this case that there was any separate minute order covering this specific matter. The recital that petitioner “has had ability to comply with the same [the order], but has willfully refused to do so” may mean that he refused to comply with the oral pronouncement or with the interlocutory judgment; it is impossible to know which was intended. The word “order” is used throughout, although the first recital refers to a judgment, and this lends color to the thought that the judgment of contempt is really intended to rest upon violation of an unenforceable order made preliminarily to the interlocutory judgment. The finding that petitioner “still does willfully fail and refuse to comply with the said order of Court” seems to imply a present refusal to perform the terms of the judgment, but this could be true only upon the assumption that the words “on or before July 20, 1955” may be rejected, an assumption heretofore shown not to be permissible. Because of the uncertainties of the commitment the incarceration of petitioner fails to have substantial support.
In my opinion petitioner should be discharged.
Petitioner’s application for a hearing by the Supreme Court was denied March 19, 1958. Shenk, J., Schauer, J., and McComb, J., were of the opinion that the application should be granted.
The question is the same whether the attack upon a contempt judgment is made in habeas corpus or on certiorari. (Wilde v. Superior Court, supra, 53 Cal.App.2d 168, 173.)
(Title of Court and Cause.) “It appearing to the Court that a judgment was entered on the -6- 7 day of Octobti July October 1955, in Department 31 of the above entitled Court, ordering the defendant, George D. Gideon III, shall vacate to pay to -tho plaintig the home and premises par man-th., located at 7706 Pair Avenue, Sun Valley, Calif, on or before July 20, 1955 and it further appearing that the defendant was present at the time of trial and heard said order pronounced, or that said order was personally served upon said defendant on July 7, 1955, and that he had knowledge of the order, and has had ability to comply with the same, but has willfully refused to do so, and that the same 'has not been complied with, and the Court having ordered the defendant to appear and show cause on 4 of December, 1957, in Department 8. why he should not be punished for contempt of court in willfully failing to comply with the said order of Court, and the defendant now appearing in court, the Court finds that the defendant has had the ability to comply with the said order of court, but has willfully failed and refused, and still does willfully fail and refuse to comply with the said order of court; Therefore, it is ordered that the said defendant, George D. Gideon III, be and he is now sentenced to 5 five days in the County Jail, commencing forthwith. Dated Dec. 4, 1957. Elmer D. Doyle, Judge. ’ ’