Ex parte Bennett

By the Court, Wallace, C. J.: In 1866 Susan Bennett filed her complaint in the District Court of Sonoma County, praying a divorce from her husband, Sanford J. Bennett, who subsequently in July of that year appeared in the action and filed his answer praying that the complaint be-dismissed.

The cause being at issue at the February Term of the Court for the year 1867, the following order in the cause was then made by the Court in open Court and entered on the minutes:

“Upon motion and consent of counsel of the respective parties in open Court, it is ordered that upon the filing of the proofs and testimony as taken by the Court Commissioner, the case be submitted to the Court and decided at chambers, and the decision and judgment be entered as of this term of Court.”

[86]On the 9th day of September, 1867, the Court having in the meantime adjourned for the term, the proofs and testimony were filed, and on the twelfth of the same month the cause was heard at chambers, without objection, both parties appearing by counsel, and on the twenty-sixth day of September, the Court not being then in session, a decree was rendered and entered as of the preceding June Term of the Court. By this decree the parties were divorced a vinculo— the custody of their infant child was awarded to the plaintiff, Susan—the defendant adjudged to pay her the sum of five hundred dollars for costs, expenses, and counsel fees incurred in the action, and also to pay to her monthly, in advance, the further sum of thirty dollars per month, to be applied by her to the support and education of the child. From this decree an appeal was taken to this Court by the defendant therein, which was dismissed at the April Term, 1872, under Buie Three, for failure to file the transcript of the record. At the June Term, 1872, of the District Court for Sonoma County, upon motion of the plaintiff, Susan, and it appearing that the defendant, who is the petitioner here, had refused to pay to her the sums of money awarded by the decree, or either of them, or any part thereof, though having the pecuniary ability so to do, he was, thereupon, adjudged by the Court to be guilty of a contempt in that behalf, and was adjudged to be imprisoned in the common Jail of said county until he should comply-with the directions of the decree.

The defendant being in custody, now applies to be discharged upon writ of habeas corpus, upon the general ground that the decree, for alleged disobedience to which he is imprisoned, having been rendered at chambers, upon a trial of the cause had at chambers, and not in open Court, is null and void.