Ex parte Winter

Foote, C. A wife brought an action against her husband for permanent support and maintenance. The court pendente lite, upon application by the plaintiff, made an order for the defendant to pay counsel for her use $250 as counsel fees,—it appearing that he was amply able to do so, and she having no means otherwise to prosecute her action.

From that order the defendant appealed, and that appeal is still pending in this court.

Afterwards, the court below, on motion duly made, ordered the defendant to pay the further sum of $250 counsel fees to the plaintiff’s counsel for her use, in order that she might prosecute her action then upon appeal as aforesaid.

The defendant failing and refusing to obey that order of the court, or to appeal therefrom, he was ordered to show cause why he should not be committed for contempt in disobeying such order.

Upon the hearing in the matter, it appeared that the plaintiff had no money or property, and that the defendant had community property and funds in his hands amounting to several thousand dollars, and that it was necessary that the plaintiff should be furnished with money to enable her to answer the appeal from the first order commanding the payment of counsel fees by the defendant as aforesaid, and that the sum of $250 was a reasonable amount for that purpose, and that the defendant was amply able to pay the same. Whereupon the court ordered the defendant to pay to plaintiff’s counsel for her use the sum of $250 within one day of the date of the service upon him of a copy of said order.

The order last mentioned was not complied with, or any appeal taken therefrom.

The motion for contempt against the defendant then [293]came on to be heard, and the defendant appeared by his counsel; it was then shown that a copy of the order of date March 3d had been duly served upon the defendant upon that day, and demand made upon him for the payment of the sum of money mentioned therein; that the defendant was able to pay the same, but refused to do so, showing no cause for such refusal, his counsel contending that the trial court had no power or authority to make or to enforce its order in the premises.

An order was then made, of date the eleventh day of March, 1886, adjudging the defendant guilty of contempt for his disobedience of said order of March 3, 1886, and ordering him to pay a fine of five dollars; and it further appearing that said defendant was still able to pay the sum of money mentioned in said order of March 3,1886, he was ordered to be taken into the custody of the sheriff of the city and county of San Francisco, and to be imprisoned in the county jail thereof until he complied with the order of the court in the premises.