Ex parte Cottrell

The Court: Some of the questions discussed in this case were considered in Ex parte Cottrell, reported supra. The contempt proceeding in this case is based upon an alleged disobedience of [421]the same order that the petitioner was committed for disobeying in that case. In the earlier case the petitioner was cited to appear by an order to show cause, and in the later he was brought before the Court by an attachment. The Code authorizes either mode. (C. C. P., § 1212.)

In the case now before us it is alleged in the petition, and not denied in the return, that the order which the petitioner is charged with having disobeyed was not served upon him, nor was any demand made upon him to comply with it, before he was attached; and he claims that for this reason the Court had not jurisdiction to proceed in the matter, and that the proceedings had were without or in excess of its jurisdiction.

Conceding that this is a special proceeding under the Code, it can not fairly be claimed that the Court, in order to acquire jurisdiction, was bound to take any other steps than those prescribed by the Code. And the Code makes “ disobedience of any lawful judgment, order, or process of the Court” a contempt of its authority, and provides in what manner a person guilty of such disobedience may be proceeded against. It does not make a service of the judgment or order disobeyed, or a demand upon the person who was bound to obey it, to do so, a condition precedent to the issuing of an attachment against him for disobeying it.

Proof of a technical service of the order, and of a demand that it be complied with, would doubtless establish a case of disobedience, unless the person upon whom the demand was made was unable to comply with it. But it by no means follows that a disobedience of the order might not be shown without proof of such formal service or demand. The question whether the order had been disobeyed, was one of fact which the Court making the order had to determine, and that determination can not be reviewed in this proceeding. “We do not sit as an appellate court upon matters of this sort, but as a court of original jurisdiction, invested with a special jurisdiction to discharge thé petitioner when no legal cause of detention exists against him.” (Ex parte Perkins, 18 Cal. 60.)

Upon the same principle we can not discharge the petitioner, on the ground that he testified to his inability to com[422]