Bryant v. Superior Court

86 P.2d 837, 30 Cal. App. 2d 509, 1939 Cal. App. LEXIS 545

• Court: California Court of Appeal
• Decided: January 25, 1939
• Docket: Civ. 12107
• Status: Published

Opinion

McCOMB, J.

This is an original application for a writ of prohibition to restrain respondent court from enforcing an order adjudging petitioner guilty of contempt of court for failure to comply with an order requiring him to pay (a) alimony and (b) a sum for the support of his minor child.

The undisputed facts are:

February 11, 1938, respondent court made an order requiring petitioner to pay $50 per month by way of alimony, and on August 26, 1938, made an order requiring him to pay $25 per month for the support of his minor child. Petitioner was not in court when the order of February 11, 1938, was made, nor was he ever served with a copy thereof. Petitioner is not delinquent upon the order for the support of his minor child.

It is the established law of California that where a party is not in court at the time an order for the payment of alimony is made and is not served with a copy thereof, the court is without jurisdiction to punish him for contempt. (In re Meyer, 131 Cal. App. 41, 44 [20 Pac. (2d) 732] ; Wallis v. Superior Court, 72 Cal. App. 90, 93 [236 Pac. 927].)

Applying the foregoing rule to the facts in the instant case, since petitioner was neither present in court nor served with a copy of the order directing him to pay alimony, the respondent court was without jurisdiction to punish him for contempt and its order is void.

For the foregoing reasons let the writ issue as prayed.

Crail, P. J., and Wood, J., concurred.