Neblett v. Superior Court

California Court of Appeal Jun 8, 1948 No. Civ. 16496Published

Before: McCOMB

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Holding. The court held that a minute order directing the preparation of findings and judgment is not a final decision and is superseded by the subsequent signed findings and judgment; therefore, a contempt order based on the superseded minute order is invalid and must be annulled.

Issues

Was there a proper return to the writ of review issued by this court?
Did the trial court exceed its jurisdiction?
Was respondent judge a proper party to the present proceedings in certiorari?

Disposition. Annulled and dismissed

Quotations verified verbatim against the opinion

“A minute order directing that findings and judgment be drawn does not constitute the decision of the court and is entirely immaterial.”

“Findings of fact and conclusions of law signed by the trial judge constitute the court’s decision and such decision supersedes any prior minute order directed to be entered by the trial court.”

“petitioner was not adjudged guilty of violating any valid order of the superior court and the judgment finding him guilty of contempt must be annulled.”

McCOMB, J.

This is an original proceeding for a writ of certiorari seeking the annullment of an order of the superior

[65]

court of March 19, 1948, finding petitioner guilty of contempt of court and sentencing him to three days in jail.

The undisputed facts disclosed by the petition for writ of certiorari are these:

On December 9, 1943, Ruby E. Neblett, wife of petitioner, filed suit for divorce against him. The trial of the action was commenced May 15, 1947, and completed on May 23, 1947. On the latter date the case was taken under submission by the trial judge. On

May 29, 1947,

the trial judge directed that there be entered, and there was entered, a minute order, (1) granting plaintiff an interlocutory decree of divorce; (2) ordering defendant to pay plaintiff’s attorney $1,500 as attorney’s fees at the rate of $100 per month, commencing June 1, 1947; and (3) directing “counsel for plaintiff and cross-defendant to prepare and submit findings and judgment.” On August 21, 1947, the trial judge signed and filed findings of fact, conclusions of law, and a judgment granting plaintiff an interlocutory decree of divorce.

Petitioner herein did not make any payments on the attorney’s fees mentioned in the minute order. On October 24, 1947, an order to show cause was issued, directing petitioner to appear and show cause why he should not be punished for contempt for failure to comply with the provisions of the

minute order of May 29,1947,

relating to attorney’s fees. On March 19, 1948, the trial judge found petitioner guilty of contempt of court for failure to comply with the

minute order of May 29, 1947,

in that he had not paid on account of the attorney’s fees mentioned in such minute order the sums due on the first of June, July and August, 1947. Accordingly petitioner was sentenced to three days in jail.

Respondents have filed a demurrer to the petition on the grounds, (a) that no proper return has been made to the writ of review, and (b) the petition fails to state a cause of action showing that respondents had exceeded the jurisdiction vested in them by law.

Neblett v. Superior Court

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