In Re McDonald

California Supreme Court Dec 21, 1932 No. Docket No. Crim. 3605.Published

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Holding. The court held that the contempt order was invalid because the underlying affidavit failed to allege that the petitioner was a party bound by the prior injunction, and the facts did not establish a violation of that judgment.

Issues

Whether an affidavit for contempt is sufficient if it fails to allege the petitioner is a party bound by the prior judgment.
Whether a stranger to a prior action can be held in contempt for filing a suit regarding property rights that may predate the prior judgment.

Disposition. Writ granted; petitioner discharged.

Quotations verified verbatim against the opinion

“It is settled that the affidavit which forms the basis of a contempt proceeding must state sufficient facts to constitute the offense.”

“Since he was a stranger to the former action, he can in no way be considered bound by the judgment unless he comes within the provision thereof referring to the “successors and assigns” of Jennie McDonald.”

“we are satisfied that the order adjudicating petitioner in contempt was invalid.”

THE COURT.

This is a petition for a writ of

habeas corpus.

On December 21, 1925, El Dora Oil Company, having previously recovered a money judgment against Ronald McDonald, brought an action against Ronald McDonald and Jennie McDonald in the Superior Court of Kern County to have it decreed that certain real property standing in the name of Jennie McDonald was in fact the property of Ronald McDonald. The object of the suit was to levy execution on the property to enforce the judgment previously obtained. A

Us pendens

was recorded on said date. Prior to trial, El Dora Oil Company was adjudicated a bankrupt, and William H. Moore, Jr., was appointed trustee and substituted as plaintiff in the action. The court gave a decree in his favor on April 16, 1929, and the decree was affirmed on appeal and became final on or about May 21, 1932. The said decree declared that the property was owned by Ronald McDonald and that Jennie McDonald had no right, title or interest therein; and that “the said defendant Jennie McDonald, her successors and assigns, are hereby forever enjoined and restrained from asserting or claiming any right, title or interest in or to said real property.

’

Subsequently, on June 6, 1932, petitioner Kenneth McDonald commenced an action in the said superior court against Jennie McDonald and the trustee of El Dora Oil Company, to have it decreed that he had a prior lien on said property in the amount of $50,000. The complaint alleged that Jennie McDonald had borrowed $50,000 from Security Trust Company on August 26, 1925, and had given as security a deed of trust on the said property; that petitioner, in August, 1927, at her request, paid said indebtedness and took an assignment of the deed of trust from Security Trust Company, it being agreed by Jennie McDonald that petitioner should be substituted for the trust company and should have a first lien upon the property to secure his payment.

[31]

Thereafter, on August 9, 1932, A. H. Swallow, one of counsel for the trustee, filed an affidavit with the trial court setting forth these facts and seeking to have petitioner adjudged guilty of contempt, on the ground that the institution of his suit constituted a violation of the injunction contained in the judgment in the prior action. An order to show cause was issued, a demurrer thereto was overruled, and petitioner was adjudged in contempt and a fine of $50 was imposed, with the alternative penalty of one day’s imprisonment for each $2 in the event of failure to pay. Petitioner did not pay, and a commitment was issued, followed by his imprisonment. This writ of

In Re McDonald

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THE COURT.

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