Ex Parte Joutsen

[542]

ANGELLOTTI, J.

The petitioner seeks his discharge from the custody of the sheriff of Alameda County, by whom he is held under a judgment of the superior court of that county, adjudging him guilty of a contempt of court in failing and refusing to pay to Selma Joutsen certain sums ordered paid by said court in a divorce action instituted by said Selma Joutsen against him, as alimony

pendente lite,

counsel fees, and costs, and directing that he be imprisoned in the county jail of said county “for the term of five days and until he comply with said order by paying plaintiff said sums.”

The divorce action was instituted January 23, 1908, the complaint alleging that plaintiff and defendant intermarried in March, 1894, but failing to allege in terms that the parties were husband and wife at the date of the commencement of the action. On the same date, on the affidavit of plaintiff, an order was made requiring Joutsen to show cause why an order should not be made directing him to pay the plaintiff fifty dollars per month alimony

pendente lite,

thirty dollars costs and seventy-five dollars attorney fees. Summons in said action and the order to show cause having been duly served on petitioner, he, on January 27th, filed in said court his demurrer to the complaint of plaintiff, based on various grounds, including that of want of facts sufficient to state a 'cause of action. The demurrer and order to show cause came on for hearing January 31, 1908. Thereupon, an order was made sustaining the demurrer, with leave to plaintiff to amend within ten days. The court then proceeded with the hearing on the order to show cause and a motion of petitioner to vacate the same, and, after argument and before any amended complaint had been filed, made its order that petitioner pay the plaintiff on or before February 10, 1908, and on the tenth day of each month thereafter, the sum of fifty dollars alimony; and that he also pay plaintiff on or before February 19, 1908, the sum of ten dollars on account of costs of suit and fifty dollars for her attorney fees in said action. This order was duly served on petitioner. It was for his failure to comply with this order that the contempt proceedings were instituted on March 1.1th, and he was adjudged guilty of contempt.