In Re Cowden

VAN DYKE, J.

The petitioner was imprisoned and confined in the county jail of the city and county of San Francisco, on a commitment of the superior court of said city and county, entered on the eighth day of May, 1903, as for contempt of court. He petitions this court to be released and discharged from such imprisonment, on the ground that such imprisonment is illegal, and that said order of commitment was without the jurisdiction of the court making it, and was void.

It appears from the petition that on the first day of December, 1902, Nellie E. Cowden obtained a judgment and decree of divorce from the petitioner, and it was therein adjudged that the petitioner should pay as alimony the sum of forty dollars per month, in advance, from the first day of December; that on the tenth day of March, 1903, the petitioner, not having paid all the alimony due under the said order, was,

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upon the application of said Nellie E. Cowden, cited to. show cause why he had not done so. At that time there was a balance of $114 still remaining unpaid. After hearing the evidence offered by the respective parties, the court, on March 13, 1903, made an order—in effect modifying the order of December, 1902—that the defendant pay to the plaintiff in said former action of divorce the sum of thirty dollars for maintenance and support. The petition contains a so-called bill of exceptions embodying the testimony taken at the hearing of March 12, 1903, but there is no record or evidence, of which the court can take notice, of any proceedings subsequent to that date. It would seem from the action of the court in modifying the order for alimony that it had been made to appear that the petitioner had not the ability to pay the amount that was first awarded. And he claims in his petition that he has not the ability to pay the sum last allowed, or any sum, and that the order of May 8th, committing him to jail, was made without any opportunity to show his inability.

In the return made to the writ by the sheriff having him in custody, he states that he held petitioner by virtue of the following order:—

“In the Superior Court, City and Co. of San Francisco, State of Cal.

“Nellie E. Cowden v. John C. Cowden.