In Re O'Leary

California Court of Appeal Oct 26, 1932 No. Docket No. 2254.Published

Before: Stephens

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Holding. The court held that in a habeas corpus proceeding, the petition does not serve as a traverse to the return unless agreed upon by the parties and the court; absent such agreement or a filed traverse, the court cannot consider evidence outside the return. Furthermore, the court held that failure to pay alimony is a continuing offense, and prior punishment for contempt does not preclude subsequent punishment for continued non-compliance.

Issues

Whether the court may consider testimony from the trial court when no traverse to the return has been filed in a habeas corpus proceeding.
Whether a petitioner can be held in contempt for failure to pay alimony after having previously been punished for the same failure.

Disposition. Writ discharged and proceeding dismissed.

Quotations verified verbatim against the opinion

“The function of the petition is to secure the issuance of the writ, and when the writ is issued the petition has accomplished its purpose.”

“the refusal to pay, having the ability so to do, is a continuing offense”

STEPHENS, J.,

pro tem.

An interlocutory decree of divorce, with alimony and attorney fees, was heretofore secured against the petitioner herein, John Walker O’Leary, by his wife, Clara Mae O’Leary. Thereafter the wife filed an affidavit alleging that the attorney fees and the accrued alimony had not been paid. Proceedings were had on an order to show cause and the husband was sentenced to jail for contempt in not complying with the order to pay. A few months later the wife filed another affidavit to the same effect as the first one, but bringing it up to date. After hearing on the usual order to show cause the husband Was again sent to jail for contempt for failure to pay. It is of this last order that he complains by petitioning this court for release from custody by the writ of

habeas corpus.

The petition relates what it alleges to be all ' of the testimony given at the hearing on the order to show cause. Petitioner contends that this testimony shows that the trial court had no jurisdiction to adjudge him in contempt and that he presented this point to the court below. Respondent contends that such testimony is not before this court.

The return sets out

in haec verba

the interlocutory decree of divorce, the order adjudging petitioner guilty of contempt and sentencing him to jail, and the commitment. As no question is raised as to the sufficiency of any of these documents or orders it will not be necessary to detail their contents. No traverse has been filed.

In the

habeas corpus

proceeding entitled

In re Smith,

143 Cal. 368 [77 Pac. 180, 181], appears the following: “Under our practice, upon the filing of the return the petition is treated as a traverse to it. Then, if any of the matters in the petition so treated as a traverse to the return are denied, it is incumbent upon the person to whom the writ is addressed to join issue upon them. In the absence of such issue joined the facts set forth in the petition will be taken as true.” This doctrine has been referred to with seeming approval in

In re O’Connor,

80 Cal. App. 648 [252 Pac. 730], and in

In Re O'Leary

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STEPHENS, J.,

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