In Re Simoniello

California Court of Appeal Apr 25, 1935 No. Crim. 2720Published

Before: Conrey

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Holding. The court held that an affidavit based on information and belief is sufficient to initiate contempt proceedings, as the court's jurisdiction to punish for contempt is based on the evidence presented at the hearing rather than the form of the initial affidavit.

Issues

Whether an affidavit based solely on information and belief is sufficient to support a judgment of constructive contempt.

Disposition. writ discharged and petitioner remanded to custody

Quotations verified verbatim against the opinion

“the jurisdiction of the court to adjudge a contempt, committed out of its presence, does not depend upon the form of the affidavit which sets the proceedings in motion.”

“the commitment was not based upon such affidavits, but upon the oral testimony of witnesses, and documentary evidence given and introduced on the return day of the order to show cause.”

CONREY, P. J.

In a civil action wherein the petitioner Simoniello was defendant, the court appointed a receiver of certain property of the defendant. Thereafter the receiver filed in said court an affidavit charging the defendant with contempt of court, in that he had committed certain acts calculated to interfere with and destroy the value of the property in the hands of the receiver. An order to show cause was issued, and at the hearing thereon the defendant was present in person and with counsel. Witnesses were sworn and testified and evidence received, and the matter having been submitted for decision the court found the defendant guilty of contempt, and ordered that the defendant-be imprisoned in the county jail for a period of five days and pay a fine in the sum of $500, with the usual alternative of imprisonment until the fine be paid. Thereupon the defendant applied to this court for a writ of

habeas corpus

and the writ was issued. This matter is now submitted for decision upon the petition, the writ and the return thereto.

Petitioner’s attack upon the commitment is based upon the single proposition that in the affidavit upon which the order to show cause was issued, the facts are stated entirely upon information and belief, and that the source of the information is not shown or alleged. The facts contained in the affidavit are in themselves sufficient to constitute a contempt of court. But it is true that they were stated only on information and belief, and that they did not contain a statement of the source from which the information had been received.

In support of his petition, the petitioner relies upon a recent decision entitled

Ex parte Roth,

3 Cal. App. (2d) 226 [39 Pac. (2d) 490], In that decision the court, reviewing extensively the decisions bearing upon the question at issue, arrived at the conclusion that “an affidavit based wholly on information and belief, and without stating any authentic source of such information, is not an affidavit of the facts prescribed by section 1211 of the Code of Civil Procedure and is insufficient as a basis of jurisdiction to support a warrant or order to show cause or a judgment in a proceed

[427]

In Re Simoniello

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CONREY, P. J.

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