Taylor v. Superior Court

EDMONDS, J.

Upon affidavits made by L. N. Deehene, the superior court issued an order directing Frederic A. Clarke and his attorneys to show cause why they should not be punished for contempt of court because of acts assertedly

[245]

committed in violation of a preliminary injunction. Later a second order to show cause issued, based upon a further affidavit of Dechene. When the matter came on for hearing, each of the orders to show cause was dismissed and the alleged contemners discharged upon the ground that the injunction could not be enforced because of the failure to comply with its requirement concerning the filing of a bond.

The present controversy is the outgrowth of an action brought by the petitioner to establish the existence of a partnership with Clarke, and to secure an accounting and declaratory relief. In the course of that litigation, he obtained from the respondent court a temporary restraining order, an order to show cause why a receiver should not be appointed and an injunction pendente lite issued. On April 24th, which was the return date of the order to show cause, a hearing was had and the court made the following order as shown by its minutes: “Injunction is granted; bond fixed at $1000.00. Restraining order is to remain in force until April 25, 1940, at 5 p. m.” On the same day, the petitioner filed a bond in which a corporate surety agreed that in the event the injunction applied for should issue, it would indemnify the party enjoined for any damages, not exceeding $1,000, as he might sustain thereby if the court finally decided that the plaintiff was not entitled thereto.

The minute order was followed by one in writing made on April 25, 1940, in which the court enjoined Clarke and his attorneys from withdrawing certain funds of the business in controversy. This order also provided “that the Plaintiff shall post a surety bond in the sum of $1000.00 to indemnify defendant.” Another provision was “that the temporary restraining order previously made herein on the 18th day of April, 1940, shall remain in full force and effect until the 25th day of April, at 5 o’clock p. m.”

The contempt proceeding was instituted by the filing of an affidavit made by one L. N. Dechene, an accountant employed by the petitioner. By this affidavit, Dechene charged that Clarke and his attorneys had violated the injunction by withdrawing funds and disposing of certain equipment in violation of its terms. In an amended affidavit, Dechene charged the commission of the same acts, and also that Eldon V. Soper and Gerard P. Baker had each filed an affidavit in the contempt proceeding which contained statements known by them to be false and untrue. An order to show cause issued upon this second affidavit.