Ex parte Clark

California Supreme Court Dec 13, 1895 No. Crim. No. 114½Published

Before: Harrison

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Holding. The court held that an insolvent debtor who willfully conceals estate property and disobeys a court order to surrender the proceeds to the assignee may be held in contempt and imprisoned until the funds are paid.

Issues

Whether a court has the authority to order an insolvent to deliver concealed property to an assignee and punish disobedience as contempt.
Whether a prior contempt punishment for a separate act precludes a subsequent contempt order for failing to obey a specific court mandate.

Disposition. Writ discharged and prisoner remanded.

Quotations verified verbatim against the opinion

“a court would be powerless indeed, if it could not compel the insolvent whose proceedings were before it for- adjudication to deliver his property to the assignee, or to punish him for contempt for disobedience to its order.”

“The contempt for which he was then punished is distinct from that for which the present order was made”

Synopsis

Contempt of Court—Findings of Fact—Habeas Corpus.—The findings of fact recited by the court in the order of commitment of a person com. mitted for contempt must be held to have been authorized by the evi. dence, and are not subject to be controverted, upon writ of habeas corpus.

Id.—Prior Punishment for Contempt—Authortty of Court—Violation of Subsequent Order.—The court is not deprived of authority to pun. ish for contempt, by reason of a prior imprisonment for contempt in a matter distinct from that for which the subsequent order was made,where it appears that the contempt first punished was committed prior to the first imprisonment, and that the offense subsequently punished is the violation of a subsequent order which could not have been made the basis of the prior contempt.

Id,—Refusal of Insolvent to Surrender Property.—After an adjudication of insolvency, regardless of whether the proceeding is in voluntary or involuntary insolvency, the insolvent is at all times subject to an examination by the court in relation to his property or estate, and if upon such examination the insolvent shall admit or the court shall find that he has omitted certain property from his inventory, the court has the same authority to direct him to deliver this property to the assignee, as it had to direct him to file the inventory, and he may be punished for contempt for refusal to comply with such direction.

Harrison, J. The petitioner herein was adjudicated an insolvent upon the application of certain of his creditors, and thereafter, under the order of the court, filed a schedule and inventory, as required by the Insolvent Act. Upon the application of the assignee of the insolvent, and after notice to him, the superior court found that certain personal property belonging to the insolvent’s estate had been concealed by him from his assignee, and sold subsequent to his adjudication, and that he had received therefor the sum of two hundred and seventy-five dollars, which he had appropriated to his own use; and on December 4,1895, made an order that he pay the said sum of money to the assignee on [406]or before the sixth day of December, 1895. A copy of this order was served upon him on the same day that it was made, and on the sixth day of December, and again on the 7th, a demand in writing was made upon him by the assignee that he pay to him the said sum of money. Upon his failure to make such payment, the assignee served him with written notice that on the tenth day of December he would move the court for an order adjudging him guilty of contempt for not obeying said order. The matter came up for hearing at the time fixed in said notice, the petitioner appearing in person and also by attorney, and, after hearing evidence and argument thereon, the court found that the petitioner herein had willfully and contumaciously refused to obey the order of December 4th, requiring him to pay said sum of money, and adjudged him guilty of contempt by reason of his willful disobedience and violation of said order; and directed that he be committed to the custody of the sheriff and imprisoned in the county jail until he should pay the said sum of two hundred and seventy-five dollars to the assignee; and, being taken into custody by the sheriff, he sued out the present writ.

The findings of fact recited in the order of commitment must be held to have been authorized by the evidence before the court, and are not subject to controversy in this proceeding.

The Insolvent Act requires the insolvent to file in the court a schedule of his debts and liabilities, and an inventory containing an accurate description of all his estate. The condition upon which the discharge in insolvency is to be granted is that the petitioner has surrendered all his property, and his original petition to be adjudged an insolvent not only imposes the obligation, but also implies an agreement by him that he will make such surrender. There is no distinction in procedure between voluntary and involuntary insolvency after an adjudication has been. made. By section 47 of the Insolvent Act, the insolvent is at all times subject to an examination by the court in relation to his

Ex parte Clark

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