Spencer v. Lawler

Paterson, J. On August 25, 1884, in an action pending between plaintiff and his wife in the superior court, the bonds of matrimony existing between the parties were dissolved, and Spencer, the plaintiff herein, was ordered to pay to his wife the sum of fifty dollars per month alimony. The decree was, on May 13, 1887, so modified as to require him to pay the sum of twenty-five dollars per month. On December 24,1888, Mrs. Spencer presented to and filed in the court below an affidavit alleging that nothing had been paid to her under the modified decree for alimony for over six months prior to that date, although the plaintiff was and had been amply able to respond to the order. Spencer, the petitioner herein, was thereupon cited to show cause before the court why he should not be punished for contempt. The parties appeared before the court on December 27th, and after a full hearing the court decided that the petitioner herein had contumaciously refused to obey the order of the court, adjudged him guilty of contempt, and committed him to the custody of the sheriff until the amount of alimony due should be paid. On the following day, his attorneys gave notice that he would apply to respondent herein, Hon. F. W. Lawler, presiding judge of the department in which the order adjudging petitioner guilty of contempt was made, for a discharge under the provisions of sections 1143 et seq. of the Code of Civil Procedure.

It is alleged in the petition herein that respondent sent a messenger to petitioner’s attorneys, informing them that he would not hear the application for a discharge on the thirty-first day of December,—the time fixed in the notice,—or at any other time; that nevertheless said attorneys appeared in court on the day last [217]named to make the application aforesaid, but respondent was not present to hear it. Upon these facts the petition was filed herein February 2, 1889, asking for a writ of mandate commanding respondent to hear petitioner’s application for a discharge from imprisonment.

In his answer, the respondent admits that an application was made, as alleged, for a discharge on December 28th, but alleges that he did not consider such an examination necessary at that time, because he had fully and fairly examined into the matter of petitioner’s ability to pay the alimony on the day previous, but that he (respondent) at all times since the expiration of ten days from and after December 27th has held himself in readiness, as judge of said court, and is now ready and willing, to make whatever examination, and to hear whatever testimony may be produced by petitioner, touching his ability to pay the several sums of money as ordered.