In Re Kolb

STURTEVANT, J.

Heretofore the petitioner filed a petition in this court' asking that a writ of habeas corpus issue, and pursuant to such a request a writ was issued and made returnable before the court. ' Thereafter the writ was served

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upon Thomas F. Finn, as sheriff of the city and county of San Francisco, and the said sheriff made his return in which he set forth that on the thirteenth day of November, 1922, he received said Fred W. Kolb under a certain order of the superior court. He then sets forth in words and figures a copy of said order from which it appears that heretofore an interlocutory decree of divorce was duly and regularly entered in a case in which Fred W. Kolb was plaintiff and Vera A. Kolb was defendant; that said decree was based on the defendant’s cross-complaint, and adjudged that the defendant was entitled to a decree of divorce and awarded to the defendant maintenance for herself and minor child; that thereafter, on the eighth day of November, 1922, an order to show cause issued out of the trial court and was served on this petitioner, commanding him to appear and show cause on the tenth day of November, 1922, why he should not be punished for contempt of court for failing to pay the maintenance awarded by the terms of the aforesaid interlocutory decree; that the order to show cause was served on the petitioner and thereafter the same was heard in open court and evidence both oral and documentary was introduced ; that from the evidence so introduced the court found that the petitioner was, at the time of the hearing, in default in the sum of one hundred dollars in the payment of the moneys theretofore directed to be paid; and that it was also found that the petitioner had the ability to pay the sum of one hundred dollars, and that his failure to pay said sum was willful and deliberate. Then follows the portion of the judgment finding the petitioner guilty of contempt of court and fixing the punishment at five days’ imprisonment in the county jail. To the return so made by the sheriff the petitioner did not interpose an answer, nor was there a stipulation that the petition might stand as a traverse, nor was any evidence produced.

Taking the recitals of the return it will be noted that no fact is stated which tends to show that the judgment committing the petitioner is void. But on the record as made the return is all that is before us. In the case entitled