In Re Selowsky

California Supreme Court Jul 21, 1922 No. Crim. No. 2482.Published

Before: Shaw

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Holding. The court held that in a civil contempt proceeding, the court acquires jurisdiction upon the presentation of an affidavit stating the facts constituting the contempt, and the subsequent failure to formally file that affidavit with the clerk is a ministerial irregularity that does not divest the court of jurisdiction.

Issues

Whether the superior court lacks jurisdiction to punish for contempt committed out of its presence if the charging affidavit is not formally filed with the clerk prior to the proceedings.

Disposition. denied

Quotations verified verbatim against the opinion

“The code does not require that the affidavit shall be filed, or shall be so marked by the clerk, either as a condition precedent to obtaining jurisdiction, or as a condition necessary to retain it.”

“These acts were purely ministerial, and ministerial misprisions after jurisdiction has been obtained are mere irregularities of procedure and are not fatal to the jurisdiction of the court or to the validity of its orders or judgments.”

SHAW, C. J.

Application is made herein for a writ of

habeas corpus,

in order to release from custody Mary M. Selowsky. The ground of the petition is that the judgment of contempt upon which she is imprisoned is void.

In a proceeding in

habeas corpus

in a case of this character the only inquiry that can be made is with reference to the jurisdiction of the court which made the judgment of which the imprisonment is a part.

(Ex Parte Joutsen,

154 Cal. 544 [98 Pac. 391]; 1 Bailey on Jurisprudence, sec. 311.) The question of jurisdiction must be determined by the record in the ease, and if jurisdiction is thereby shown, extrinsic evidence cannot be allowed to contradict it. (1 Bailey on Jurisprudence, sec. 526.) The judgment in the present case was a judgment convicting Mrs. Selowsky of contempt of court for a violation of a previous judgment of the court enjoining her from maintaining a nuisance on certain premises in Napa county.

The contempt charged against Mrs. Selowsky was committed out of the presence of the court. The point of objection to the judgment of contempt arises from the contention that at the time of the proceedings leading up to that judgment no affidavit stating the facts constituting the contempt had been filed in the superior court. The facts relating to this subject are as follows: On April 17, 1922, the district attorney of Napa county presented to the superior court of that county his verified petition, supported by an affidavit, adequately stating the facts which constituted the contempt of which Mrs. Selowsky was finally adjudged guilty. Thereupon the court made an order directing her to appear and show cause on April 24, 1922, why she should not be punished for such contempt. This order, with copies of the petition and affidavit, so presented to the court, were duly served on Mrs. Selowsky on April 17, 1922. On the 24th' the parties appeared in court and the hearing was continued to May 16, 1922, on which day, the parties all being present, the evidence was heard relating to the matter and the case was submitted to

[333]

In Re Selowsky

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SHAW, C. J.

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