Ketscher v. Superior Court

Opinion

GARGANO, J.

After hearing an order to show cause, petitioner was adjudicated in constructive contempt of court for disobeying an alleged oral order of the superior court. He was fined $500 and sentenced to serve five days in the county jail. The fine was suspended, and because petitioner is a farmer he was ordered to serve the sentence in the county jail only during nighttime hours. Petitioner brings this action for write of prohibition to enjoin the court from executing the sentence.

Petitioner does not deny that he committed the acts for which he was adjudicated in contempt. He maintains that the court’s oral pronouncement on which the adjudication was based is ineffective and that the court lacked jurisdiction to hold him in contempt. Petitioner also alleges that he does not have an adequate remedy at law because the sentence will be imposed if he is not granted relief in this proceeding.

The chronology is this: On August 15, 1969, the real party in interest, hereafter referred to as real party, filed an action against petitioner for injunctive and other relief; real party and petitioner are brothers, and they are involved in a dispute over a strip of real property and certain riparian rights. The cause proceeded to trial on December 10, 1969; petitioner was represented by James S. Shepard, and real party was represented by Claude L. Rowe. On the fifth day of trial the parties entered into certain stipulations for judgment. Subsequently, Mr. Rowe moved for permission to withdraw from the stipulations, but his motion was denied. On February 18, 1970, the court commenced a hearing on Mr. Shepard’s objections to certain paragraphs contained in a proposed judgment prepared by Mr. Rowe. After an extended colloquy between the court and counsel, the hearing was continued until February 27, 1970. Then, the following occurred: “Mr. Rowe: May I suggest this final paragraph, that there be no attacks? Mr. Shepard: So stipulated. Mr. Rowe: On either party to the other. The Court: If either party attacks the other,

[604]

I will consider this to be contempt of court, and I will punish accordingly. If you people can’t, and I am speaking to you, Maurice, you have got to keep away from fisticuffs in this case. You are not settling anything at all. You are only complicating it, and I don’t like it. Mr. Rowe: And that applies to the party’s attorney. Mr. Shepard: That is correct. The Court: Thank you. That is all.” On February 20, 1970, real party and his employees were removing a fence from the disputed strip of land when petitioner, appeared on the scene. Petitioner objected to the removal of the fence because once it was removed his horses would escape. An argument ensued, and petitioner threw a rock through the window of his brother’s automobile. It was for this provocative act that petitioner was held in contempt.