Frost v. Superior Court

HART, J.

In an action previously instituted by Sallie C. Turner against the petitioner and one Patrick L. Flanigan, a judgment for -the sum of $8,166.60 was entered by the clerk of the above-named respondent, court, against petitioner and said Flanigan on the thirteenth day of

[582]

March, 1919. On the same day a writ of execution Was issued in said action by the clerk of said court (respondent herein), directed to the sheriff of the city and county of San Francisco. Said writ was returned to said clerk partially satisfied and, on the tenth day of April, 1919, was filed by said clerk with the papers in said, action. The petition here alleges that “on the tenth day of April, 1919, an oral application was made by said plaintiff [Sallie C. Turner] to said Honorable Clarence A. Baker, in his chambers and not while he was holding court, for an order directing said petitioner to appear before John McCallan, a notary public, in and for the said city and county, of San Francisco, as a referee, to answer on oath concerning his property; that said judge thereupon in compliance with such application made in said action the following order,” and then follows the order made by the judge, commanding the petitioner to appear before the said John McCallan, notary public, a referee, etc., in room 1012, Mills Building, San Francisco, on the twenty-third day of April, 1919, at 10 o’clock in the forenoon, to answer on oath concerning his property, etc.

It is made to appear that the said McCallan, as referee, made and signed a return to the respondent, superior court, setting forth the fact that the order above mentioned was served in due time on the petitioner by the sheriff of the city and county of San Francisco, that petitioner “did not appear before me at room 1012, Mills Building, . . . on the twenty-third day of April, 1919, at the hour of 10 o’clock A. M., or at all, and I hereby recommend that the said Herman Frost be punished for contempt in failing to obey the said order and that the court take such steps as may seem meet and proper in the premises to punish the said Herman Frost for his contempt of this referee and the order of the court.”

Upon receiving and the filing of the said return or report of the said referee, the respondents, it is alleged, ordered the issuance of and the clerk of said court issued “a writ of attachment for contempt against your petitioner and directed to the skeriff of said county of Modoc; that the time for the return of said writ of attachment has by order of said superior court been continued to the sixteenth day of May, 1919, at the hour of 10 o’clock A. M.”