Harlan v. Superior Court

SHINN, P. J.

Pauline Harlan seeks by this proceeding in prohibition relief from, a conviction of contempt of court and a sentence of three days in the county jail. The order was made in an action for separate maintenance in which petitioner is plaintiff, and James J. Harlan is defendant. An alternative writ having been issued, respondent superior court demurred to the petition, and J ames J. Harlan filed an answer.

Upon her verified complaint and affidavit petitioner obtained an order requiring respondent James J. Harlan t.o show cause why he should not be required to pay support and suit money and be restrained from molesting or interfering with plaintiff or the minor child of the parties. The order to show cause was returnable on June 8, 1949. On June 7, 1949, Harlan filed an affidavit in which he said, “it is desired that wife be restrained” from drinking, using vile language, threatening husband, calling him names, disposing of community property and talking to acquaintances and business associates of defendant in a manner to interfere with his business. There was no showing by answer, cross-complaint or affidavit that the wife had committed, or threatened to commit, all or any of the acts with respect to which it was desired to place her under restraint. No order to show cause was issued and no notice was given the wife with respect to any application for an injunction. On June 8th, the court made an order which gave the exclusive use of one residence to plaintiff and the use of an automobile and another residence to defendant. Both parties were enjoined as follows: (1) From making derogatory remarks in front of the child; (2) from disposing of or encumbering community property; (3) from annoying, molesting or interfering in the business affairs of the other, and plaintiff was ordered to return all personal effects and business records to defendant.

On July 6th, in another department of the court, in response to an order to show cause, a minute order was made by Judge Eugene P. Fay that “the court finds that plaintiff is in violation of the molestation and interference restraining order heretofore made. Plaintiff is adjudged in contempt of court and is sentenced to three days in the county jail . . . both parties are restrained from in any way molesting, annoying or

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striking the other or making derogatory remarks concerning the other in the presence of the child.” Execution of sentence was suspended on condition that petitioner obey the orders of the court.