Smith v. Smith

PLUMMER, J.

This cause is before us upon the defendant’s application for a writ of

supersedeas,

and also for an order directing the superior court of the county of Yuba to release the defendant from the custody of the sheriff of said county.

On the twenty-first day of October, 1927, the superior court of said county entered its order, and on the twenty-fourth day of October, 1927, entered a final decree of divorce in the above-entitled cause, by the terms of which order, and also by the terms of said final decree, the above-named

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defendant was required to pay to the plaintiff the sum of $175 per month as permanent alimony commencing on the first day of July, 1927, and continuing thereafter until the further order of said court, and also awarding the plaintiff the sum of $200 as and for counsel fees in said action. On the third day of November, 1927, an appeal was regularly taken by the above-named defendant from the order and final decree just referred to herein. The defendant not having paid the monthly alimony specified in the final decree of divorce entered in said cause, proceedings were taken and had for the purpose of punishing the defendant for contempt for failure to comply with said order and final decree, and on the fourteenth day of November, 1927, the trial court entered an order adjudging the defendant guilty of contempt in not having paid the alimony as required by the final decree entered in said cause and directing that unless the defendant paid to the plaintiff the sum of $1,075 within five days thereafter, that appellant should be committed to the sheriff of the county of Tuba until he should comply with said order. Thereafter, proceedings were taken and had in this court for a review of the order of the trial court adjudging the defendant guilty of contempt, and the order of the court so doing was affirmed by this court and the

remittitur

from this court was filed with the clerk of the superior court of Tuba County on the twenty-third day of April, 1928. Thereupon and on said twenty-third day of April, 1928, the superior court of the county of Tuba made and entered its order directing that the defendant be committed for contempt of said court as hereinbefore referred to. That thereafter, and on the same day, to wit, April 23, 1928, the defendant presented to said superior court a good and sufficient undertaking for a stay of judgment in the above-entitled cause, in the sum of $15,100, conditioned in all particulars as required by section 942 of the Code of Civil Procedure. This undertaking is in double the amount of the sum already accrued and which will accrue during a period of three years from and after the filing of the notice of appeal herein on November 3, 1927. Upon the presentation of said bond and undertaking to the judge of the superior court of the county of Tuba for approval, approval thereof by said judge was refused, on the ground that an order of arrest of said defendant had previously