Wilson

McFarland, J. In a certain action for divorce brought against petitioner, William I. Wilson, by his wife, in the superior court of Alameda County, the said court on February 1, 1887, made an- order requiring petitioner to pay plaintiff therein two hundred dollars per month alimony and eight hundred dollars counsel fees. On April 25, 1887, the said court committed petitioner to the custody of the sheriff until said money should be paid; and since that date petitioner has been in jail under said orders. The petition states that on December 8, 1887, the petitioner, after due notice, applied to the respondent, Hon. [581]Noble Hamilton, a judge of the superior court of said county, to be discharged under sections 1143 et seq. of the Code of Civil Procedure; and that the respondent refused and still refuses to allow petitioner “to be examined or to take the oath prescribed by, or in any manner to receive any of the benefits or privileges provided for by, said sections of said code.”

The answer of respondent first sets forth that petitioner “was not confined in jail on an execution issued on a judgment rendered in a civil action”; that he was so confined by virtue of “ a commitment for contempt of court”; and that he “was not, and still is not, entitled to be examined, or to be discharged from custody, under the provisions of said sections ” of the code.

If these were the only statements contained in the answer, it would be clear that respondent refused to allow petitioner to be examined, and to consider his application to be discharged, on the ground that his case did not come within the provisions of said sections of the code. But the respondent in his answer denies that he refused to hear petitioner’s application for discharge; and “on the contrary, alleges that defendant, as superior judge of Alameda County, did, on the eighth day of December, 1887, hear the said application of said William I. Wilson, and all evidence, matters, and things produced in behalf of said application, and then and there listened patiently to the argument of counsel for said William I. Wilson,” etc.; and “that afterward, on the ninth day of January, 1888, defendant rendered his decision and denied the application of said William I. Wilson for discharge,” on the ground that “he was not, in the judgment of defendant, entitled thereto.”

It is probable that the respondent refused to discharge the petitioner, and to consider the merits of the case, upon the ground that, having been committed for contempt, he could not under any circumstances be discharged under the sections of the code referred to. But