Ex parte Ah Men

Paterson, J. Petitioner claims that he should be discharged from custody, for the following reasons: 1. Because the affidavit on which the warrant was issued was insufficient to give the court jurisdiction to order the arrest of petitioner; 2. Because the petitioner was arrested under a general warrant of arrest in Nevada County by the deputy sheriff of Yuba County; 3. Because he was arrested in the night-time, and without an in[200]dorsement on the warrant of arrest to authorize the arrest at that time; 4. Because the warrant of arrest did not show upon its face facts authorizing the arrest; and 5. Because the petitioner is not named in the warrant of arrest, the only name used in the warrant being a fictitious name, and there being no other designation or description of the person to be arrested.

1. The affidavit on which the warrant of arrest was issued alleges in substance that since the service on the defendants of the injunction which had been issued on the sixteenth day of January, and served on defendants on the thirtieth day of the same month, said defendants, John Doe and others, have been working and operating the mine described in the complaint by the hydraulic process, in willful and gross disobedience of the orders and processes of the court. It describes particularly the manner in which the mine had been operated, and alleges that large quantities of material had been deposited into Deer Creek, tributary to the Yuba River, in violation of the writ of injunction. These allegations, we think, were sufficient. Section 1211 of the Code of Civil Procedure provides that “when the contempt is not committed in the immediate view and presence of the court or judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees, arbitrators, or other judicial officer.” In this state, although contempt of court is a specific criminal offense, and a judgment of conviction thereof the same as a judgment in a criminal case (Ex parte Hollis, 59 Cal. 408), the practice has always been to prosecute a matter of contempt in the cause or proceeding out of which it arose, and not as a separate proceeding, with a title of its own. It is, therefore, unnecessary in the affidavit to set forth the pendency of the cause or proceeding, or the provisions of the order which has been violated. The court takes judicial notice of those matters, and it ip [201]