Huerstal v. Muir

MoKlNSTRY, J.: This is an appeal from an order of the late Fifteenth Judicial District Court, adjudging the defendant, Hugh Muir, guilty of contempt, for that, after having been removed from certain premises upon process duly served and issued upon a judgment in an action of ejectment, the said Muir had, without right, re-entered; and also directing that “an alias writ of execution and restitution issue.” Respondent has moved that the appeal be dismissed.

It has been suggested that the portion of the order directing that an alias writ issue may be separated from the rest, and an appeal be entertained from such portion. But that [480]portion of the order is based upon the adjudication with respect to the contempt, and is merely incidental to 'such adjudication. The order is a whole, and if the appeal can not be sustained as to the whole, it must fail as to every part. The Court below, having found defendant guilty of the contempt, had no discretion to refuse the writ. (C. C. P., § 1210.)

The order is entitled, “In the District Court of the Fifteenth Judicial District, in and for the City and County of San Francisco,” and was filed with the Clerk of the District Court of said city and county. The action was pending in the Fifteenth District Court in and for the County of Contra Costa. It may be assumed that the order has never taken effect as a valid order, because not entered by or filed with the Clerk of the Court for Contra Costa, as required by the Act creating the judicial district. (Stats. 1863-4, p. 479.) Nevertheless, it must be treated as being what it purports to be—an order of the Fifteenth District Court for San Francisco.

It is claimed by appellant that the order is void; but appeals have often been entertained from judgments and orders void in law.

This brings us to the question, whether the order adjudging the party guilty of contempt is appealable. In People v. O’Neil, 47 Cal. 109, it was held: “An appeal may be taken from a judgment for contempt, when the fine is for $300, and the Court below has exceeded its jurisdiction, and there are facts dehors the record, which can only be brought up on a statement on appeal.” We are not inclined to extend the authority of that decision so as that it shall include any case differing in its circumstances, or not limited by the conditions therein considered as material. In the case now before us, no fine of $300 was imposed by the Court below; neither does it appear that there are facts dehors the record which could only be brought up by statement or bill of exceptions. It may be remarked, also, that the affidavits and papers found in the transcript are in no way identified as having been used at the trial of the alleged contempt. „