In Re Hagan

FORD, J.

On November 22, 1963, Evert L. Hagan was found to be in contempt of court and sentenced to serve five days in the county jail as punishment. The order was made in the course of proceedings in the case entitled

Fairfield

v.

Hamilton et al.,

in which Hagan was a defendant. The case had been previously tried, but Hagan had been granted a new trial and the order with respect thereto had been affirmed on appeal on August 8, 1962.

(Fairfield

v.

Hamilton,

206 Cal.App.2d 594 [24 Cal.Rptr. 73].)

On October 1, 1963, a pretrial conference was held. Jesse A. Hamilton appeared as counsel for Hagan. Pursuant to a written stipulation executed by the plaintiff and by Mr. Hamilton as the attorney for Hagan, a commissioner of the superior court was appointed to act as judge pro tempore with respect to the “pre-trial” in the matter. In the pretrial conference order, dated October 2, 1963, made by the judge pro tempore, it was stated that no law and motion matters “are pending or likely” and that the case had already been set for trial. On October 21, 1963, the judge pro tempore heard and denied a motion of the defendant Hagan for an order granting him leave to file a cross-complaint. Hagan filed a notice in the superior court on October 23, 1963, in which he stated that he appealed from that order.

On November 22, 1963, another motion of the defendant Hagan for an order granting him leave to file a eross-eomplaint was transferred for hearing from department 2 of the superior court

1

to the same commissioner who had previously been designated as judge pro tempore. The record shows that immediately upon the commencement of the proceedings before the judge pro tempore, the following oc

[592]

curred: “The Court : First of all, I want to know, does anyone have any equipment to record this particular hearing? Mr. Evert L. Hagan : Yes, sir, I have. I’m recording what you are saying right now. The Court : I hereby hold you in contempt of Court. Mr. Evert L. Hagan : Very well. The Court : You are sentenced to five days in County Jail. Mr. Hamilton, are you aware that this man has this equipment ? Mr. Hamilton : No. The Court : Mr. Hamilton, on a previous occasion here, Mr. Hamilton—Mr. Hamilton : I know he uses it from time to time. The Court:—you participated in an application for a Writ of Supersedeas in aid of appellate jurisdiction. At that time you filed with the Court of Appeal material which was taken by a recording. Mr. Hamilton : Yes. The Court : Did you know that that was taken by—Mr. Hamilton : Yes. The Court: All right. I hereby hold you in contempt of Court and sentence you to five days in jail. The motion will be continued until—I want this man—I want the bailiff brought in and this equipment taken from him right away, and you are to proceed to jail forthwith.”