Thomas v. Superior Court

PULLEN, P. J.

Following an action in divorce an order was made and entered directing petitioner to make certain payments of alimony. The payments as directed not having been made, an affidavit was filed purporting to show such nonpayment, and based thereon an order was issued by respondent herein and served upon petitioner directing that

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he show cause, if any, why he should not be punished for contempt. The matter came on for hearing before Honorable J. 0. Moncur, Judge of the Superior Court, one of the respondents herein, who caused to be entered by the clerk of the court a minute order reciting that no legal excuse for said nonpayment had been shown and that the petitioner herein be adjudged in contempt for his failure to make such payments and further directing that he be imprisoned until compliance with said order, and then the order continued: “It is provided, however, that before commitment issue for the execution of judgment on this order that he be given an opportunity to make such arrangement as may be satisfactory to this court for the payments of all amounts due under said order. And upon failure to so arrange, commitment shall issue forthwith. It is directed that counsel for plaintiff prepare findings, judgment and commitment in accordance herewith. ’ ’

Thereupon and before any other or further finding, judgment or commitment had been prepared or signed, petitioner applied to this court for an alternative writ of prohibition directed to respondents requiring that they show cause why they should not be restrained from proceeding further in said matter. Eespondents appeared by demurrer, alleging that the petition did not state facts sufficient to constitute a cause of action nor grounds for issuance of a writ of prohibition. In support thereof defendant argued that no final order had been made by the court, and until findings and commitment had been issued as directed by the court there was nothing toward which a writ could be directed.

We believe that the objection is valid. While it is true that a minute order might be sufficient to carry out the directions of the court, nevertheless the order here made shows upon its face that it was not intended as a final judgment of the court.

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