Tomsky v. Superior Court

THE COURT.

Application of a writ of

certiorari

to review certain orders of said court, Department Nine thereof, adjudging petitioner guilty of contempt.

The petitioner was the attorney of one Dora Levy, the executrix of the will of Michael L. Levy, deceased, whose estate was being administered in said court, and also of said Dora Levy, as guardian of the estate of one Marcus Levy, a minor, which was also pending in said court. The said Dora Levy paid to petitioner the sum of eighty dollars as a retainer and for costs in the estate, and the sum of thirty dollars as a retainer and for costs in the guardianship matter. On the first day of ¡November, 1897, the court made an order in the

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said estate, .reciting that petitioner had received the sum. of eighty dollars from the executrix “which he claims as his attorney’s fees,” and that no order of court had been made allowing attorneys’ fees. The order then fixed the sum of twenty-five dollars as the attorney’s fee for the services of petitioner, and further ordered that he “return to said executrix herein forthwith the sum of fifty-five dollars.”

On the same date the court made an order in the guardianship matter reciting that petitioner had received from said guardian the sum of thirty dollars, which “he claims as his attorney’s fees herein,” and that no order of court had been made fixing attorneys’ fees. The order then directed the petitioner to return to the guardian “forthwith the sum of thirty dollars.”

On the tenth day. of ¡November, 1897, the petitioner, not having complied with the said orders, or either of them, was, after notice, brought before the court on contempt proceedings. An order in the estate was made reciting, among other things: “That said William Tomsky obtained said moneys from said executrix under and by reason of his promise to her to diligently and properly attend to the settlement and final distribution of said estate, and to pay the necessary costs and charges of, and pertaining to, the administration of said estate, but that he has failed, neglected, and refused to perform the duties so undertaken by him, or to pay out of said moneys, or at all, the necessary costs and disbursements herein pertaining to said estate.” The order further adjudged petitioner guilty of contempt of court in neglecting and refusing to return said money as ordered by the court, and directed that he be committed to the county jail, imprisoned five days, pay a fine of one hundred dollars, and that he be further committed to the county jail for the period of one day for every twenty dollars of the fine until said fine be paid. On the same day the court made an order in said guardianship matter, reciting the failure of the petitioner to pay the said thirty dollars as ordered by the court, and that said petitioner “has not used any of said moneys for the purposes for which he obtained the same, but has converted the whole thereof to his own use.”