Nelson v. Superior Court

GRIFFIN, Acting P. J. The order arose out of an action commenced in the superior court by plaintiffs Amalgamated Meat Cutters and Butcher Workmen of North America Local 229, against defendant and petitioner Reuben T. Nelson, doing business as Nelson’s Market, wherein plaintiffs sought specific performance of a collective bargaining agreement signed by [532]defendant, and damages for its claimed breach. The complaint was amended after attack and finally on June 23, 1955, defendant answered. On July 1, 1955, a subpoena duces tecum re deposition, was obtained by plaintiffs in which defendant was ordered to appear for this purpose on July 9th. A motion to quash the subpoena was made. On the same day petitioner received notice of trial for August 2d, 1954. On July 14, the motion to quash was granted as to the production of books but denied insofar as it pertained to the taking of oral testimony. On that day petitioner refused to answer further questions on the ground that the first amended complaint did not state a cause of action. On July 16th plaintiffs served on defendant-petitioner an order to show cause why he should not be punished for contempt. On July 28th the judge vacated the order to show cause and ruled that petitioner was not in contempt. A second amended complaint was filed the next morning by consent of the court and the judge orally ordered the defendant, without other notice, to return at that time for the purpose of taking his deposition. Petitioner then was ordered to be sworn and take the witness stand for the purpose of taking his deposition.

It was the contention of counsel for petitioner that the second amended complaint did not state a cause of action; that the contract referred to was not attached thereto nor made a part thereof; that he had no opportunity to answer the new issues raised; and accordingly advised defendant, after answering a few questions, to refrain from answering any further questions based thereon. The judge found petitioner-defendant guilty of contempt, orally ordered him to jail, and granted a stay of execution pending the outcome of this writ.

The main contention here raised is the question of the jurisdiction of the court and the sufficiency of this order. The argument is that the order of commitment does not recite the precise questions propounded which defendant-petitioner declined to answer nor did it set forth any facts showing the materiality and pertinency of the questions to the issues before the court.

Without deciding the sufficiency of the second amended complaint to state a cause of action or the sufficiency of notice re deposition, it is apparent from the authorities cited that no valid order of contempt and commitment was issued.