Buhlert v. Superior Court

Thornton, J. — Application for a writ of review as to • order committing petitioner, Buhlert, for contempt of; court.

In an action of Sere v. McGovern, pending in the court above named, Buhlert was properly made a party as assignee in insolvency of McGovern. The action was-; for the settlement of the accounts of a partnership be- - tween Sere and McGovern. The property of the firm, it-seems, had passed into the hands of Buhlert as assignee • as aforesaid, who took possession of it under an order in. the insolvency case, and had, by agreement of all parties,, including Sere, been sold by the assignee, from which was realized the sum of $1,588. By the final judgment in the action of Sere v. Buhlert, it was adjudged that plaintiff recover of Buhlert,- assignee as aforesaid, the sum of $794, and Buhlert was by the judgment required to pay into court, within ten days after its rendition, the said sum of money for the use of. plaintiff-

[98]This order to pay into court the sum mentioned.was disobeyed by Buhlert; thereupon proceedings were taken against him for contempt of court, and he was adjudged guilty of contempt, and punishment was pronounced against him therefor.

The. application here is to review and annul this order.

The above facts appear by the return to this court. But it is urged that Buhlert has appealed from the judgment above entered in the case of Sere v. Buhlert, and has filed an undertaking on appeal in the sum of three hundred dollars, and that by a portion of section 67 of the Insolvent Act, the bond of Buhlert as assignee stays all proceedings on the judgment, and no undertaking to stay execution is required, and in consequence of the foregoing, the court had no jurisdiction to enforce its judgment by a proceeding for contempt.

The contention is without anything to support it. Section 67 of the Insolvent Act has no application to the appeal taken by Buhlert. It applies only to the appeals specified in the section cited, of which the appeal of Buhlert is not one.

The court had jurisdiction as to the contempt proceeding, and the application to annul the order of the court committing the applicant for contempt must be denied.