Pennell v. Superior Court

[376]

McLUCAS, J.,

pro tem.

This is an application for a writ of prohibition to prevent the respondents from conducting any further proceedings on account of an order to show cause why the petitioner should not be punished for contempt of court for failure to pay attorney’s fees in a divorce action as ordered and adjudged by the respondent court.

It appears from the pleadings that an interlocutory judgment of divorce was granted by respondent court on December 28, 1925, wherein it was ordered as follows: “It is further ordered that W. C. Pennell pay to Duke Stone, Esquire, attorney for plaintiff, Alice Pennell, the sum of Two Hundred ($200) Dollars, attorney’s fees, payable forthwith.” Immediately thereafter the defendant in said action gave notice of motion to vacate the said judgment, including that portion thereof providing for the payment of attorney’s fees, on the ground that such provision was in excess of the jurisdiction of the court and void. This motion was denied, and the defendant was ordered to pay Duke Stone, attorney for plaintiff, the sum of $50 additional fees for appearance on the hearing of said motion. No appeal was taken. On August 29, 1927, an order to show cause, based upon the affidavit of plaintiff alleging the issuance of the said order and judgment to pay the sums of $200 and $50 to plaintiff’s attorney, Duke Stone, was issued by the respondent court, ordering the defendant to appear in said court and show cause why he should not be punished for contempt of court for failure to abide by said order and judgment for the p yment of attorney’s fees. At the hearing of the order to show cause defendant objected to the jurisdiction of the court to issue said order to show cause or to conduct a hearing thereon, upon the ground that the said order contained in said interlocutory judgment for payment of attorney’s fees and said supplemental order for the payment of attorney’s fees were in excess of the jurisdiction of the court and were wholly void on their face. The objections were overruled, and on September 23d defendant was found guilty of contempt and sentence continued until October 3d. On October 1st this application for writ of prohibition was filed and an alternative writ was issued by this court on said date.

[377]