Wallis v. Superior Court

CRAIG, J.

Certiorari

is here invoked to review the procecdings of the superior court of Los Angeles County, wherein petitioner was adjudged guilty of contempt of court for failure to comply with an order directing the delivery of a certain Velie automobile and the payment of money to petitioner’s wife

pendente lite,

as attorney’s fees, costs of suit, and for the maintenance and support of herself and minor child.

It is alleged in the petition of petitioner that he instituted an action for divorce, and that his wife was served with process, and appeared by counsel; that thereafter an amended complaint was served and filed, and no demurrer or answer having been filed thereto, a default was entered on or about October 6, 1924. On September 24, 1924, pursuant to an order to show cause, which the petitioner alleges was not served upon him, the trial court signed and, on October 11, 1924, filed a written order reading in part as follows: “Upon reading the affidavit heretofore filed by the defendant here and upon hearing the evidence adduced in support of the order to show cause on file herein, on the 24th day of September, 1924, at 2:00 o’clock P. M., the defendant being personally present in court and represented by her counsel, Geo. L. Hampton, and the plaintiff having made no appearance at all, either personally or by counsel, it is hereby ordered,” etc. This order purported to be one requiring the. plaintiff in the action, the petitioner herein, to pay certain sums as alimony and suit money, and to deliver the automobile to the defendant.

On October 28, 1924, the defendant filed her affidavit, reciting the fact of the issuance of said order, that the same was “duly served upon plaintiff as shown by the affidavit of service of said order on file herein,” and alleging that plaintiff had failed to comply with any of its requirements. Citar tion was thereupon issued to petitioner, directing that he appear before said superior court on November 12, 1924, then and there to show cause, if any he might have, why he should not be punished for contempt of court for disobedience of the order of September 24th.

[92]

Aside from the defendant’s statement above quoted there is no evidence whatever in the record of the order of September 24, 1924, for payment of alimony, etc., having been served upon the plaintiff, petitioner herein, and he alleges in his petition that in response to said citation he appeared and testified, among other things, that he had not been served with said order to show cause, or with the order made pursuant thereto, and that he knew nothing thereof. However, he was adjudged guilty of contempt of court for not having complied with the terms of the latter order.