In Re Baker

CONREY, P. J.

The petitioner is in custody of the sheriff of Kern County by virtue of a commitment issued out of the superior court of that county. Claiming that his imprisonment is unlawful, he applied to this court for a writ of

habeas corpus,

which was granted. The commitment is based upon

[321]

an order made by the superior court on date September 26, 1916, wherein petitioner was required to pay a fine of five hundred dollars as punishment for a contempt of court; and wherein it was further ordered that in default of payment of the fine he be imprisoned in the county jail until the fine is satisfied at the rate of one day’s imprisonment for each $2 unpaid of the fine.

Petitioner was sheriff of Kern County for the term ending in January, 1915, when he was succeeded by D. B. Newell, the present sheriff. During the year 1913, one Matthew Bailey commenced an action in the superior court of Kern County against Security Trust Company, a corporation, to recover possession of certain corporation certificates of stock and other documents. Under claim and delivery proceedings in that action, Baker, as sheriff, took possession of that property. Thereafter Bailey applied to the superior court for a peremptory writ of mandate to compel the sheriff to deliver the property to him. In that proceeding a judgment rendered in favor of the sheriff was reversed by this court.

(Bailey

v.

Baker,

28 Cal. App. 537, [153 Pac. 242].) Baker’s defense in that case, as presented in this court, was that he had lawfully returned the property to Security Trust Company by reason of a redelivery bond received by him from the company, and this court held that under the facts then shown by the record the redelivery bond was ineffective, and that the stated defense could not be maintained. When the case of

Bailey

v.

Baker

was restored to the calendar of the superior court, it was tried again between the original parties, the plaintiff contending that Baker continued to be sheriff for the purpose of completing the duties pertaining to his office in the claim and delivery proceeding. On February 9, 1916, the superior court filed “findings of fact and conclusions of law,” which on February 10th were recorded in its book of judgments, and no other judgment was entered. The so-called findings contained a direction that the writ of mandate issue. On the ninth day of February a writ of mandate was issued to Baker “as sheriff of the county of Kern, State of California, to perform the duties as sheriff, ... in that certain action entitled