Mitchell v. Superior Court in and for S.F.

[424]

MELVIN, J.

Certiorari

directed to a judge of the superior court to the end that this court might examine the proceedings whereby the petitioner, G. W. Mitchell, Jr., was found guilty of contempt.

It appears from the record that an action for divorce was pending in the superior court of the city and- county of San Francisco, in which Edith Mitchell was plaintiff and this petitioner was defendant. On or about September 25, 1908, after due proceedings, the court ordered the payment of certain counsel fees and also monthly sums for the support of said plaintiff, Edith Mitchell,

pendente lite.

Thereafter, upon the affidavit of Edith Mitchell being filed, the court issued an order requiring G. W. Mitchell, Jr., to show cause why he should not be punished for contempt of court because of his failure to comply with the direction to pay alimony and counsel fees. After a hearing he was found .guilty and it was adjudged that he be imprisoned in the county jail of the city and county of San Francisco for the term of five days. Petitioner contends that the court never obtained jurisdiction of the proceeding because of the defects in the affidavit. The rule upon this subject in California is well settled. ‘ ‘ The affidavit or affidavits upon which the contempt proceeding is based constitute the complaint, and unless they, upon their face, charge facts constituting a contempt, the court is without jurisdiction to proceed.”

(Hutton

v.

Superior Court,

147 Cal. 159, [81 Pac. 410].) The same rule was announced in

Batchelder

v.

Moore,

42 Cal. 415;

Overend

v.

Superior Court,

131 Cal. 284, [63 Pac. 372]