In Re Passalacqua

128 Cal. App. 2d 230

• Court: California Court of Appeal
• Decided: October 20, 1954
• Docket: Crim 3075
• Status: Published

Opinions

DOOLING, J.

This is a proceeding in habeas corpus seeking the release of Joe Passalacqua.

On July 7, 1954, an affidavit was filed in the Superior Court in and for the City and County of San Francisco charging Passalacqua with contempt of court in the failure to pay to his divorced wife a certain sum for the support of his minor child and an additional sum as attorneys’ fees as ordered to be paid by an interlocutory decree of divorce theretofore entered. An order to show cause was issued on this affidavit and after a hearing thereon the court by minute order entered on July 23, 1954: “ordered defendant to purge content (sic) by complying with the provisions of a prior order re support and attorneys’ fees. ’ ’

No order was made continuing the contempt proceeding for further action of the court or directing Passalacqua to return to court at any later date. That proceeding was terminated with the order of July 23.

On August 25, 1954, without the filing of any supporting affidavit, a warrant of attachment was issued to bring Passalacqua before the court to show cause why he should not be punished for contempt in “disobeying the mandate of the court.” Thereafter, pursuant to such attachment, Passalacqua appeared before the court and was adjudged guilty of contempt and ordered confined in jail until he made the payments found to be owing under the decree.

A warrant of attachment may be issued to bring before the court a person charged with a contempt “not committed in the immediate view and presence of the court” (Code Civ. Proc., § 1212) only if “an affidavit shall be presented to the court ... of the facts constituting the contempt . . .” (Code Civ. Proc., § 1211).

The affidavit of July 7 could not serve this office as it had culminated in the order of July 23 directing Passalacqua to comply “with the provisions of a prior order re support and attorneys’ fees.” If Passalacqua failed to obey this order of July 23 that failure must be shown by a new affidavit in order to bring him again before the court for contempt. The case in this respect is ruled by In re McCarty, 154 Cal. 534 [98 P. 540], where similar successive orders were made without the filing of a second affidavit. The court said at page 539: “The order did not require payment in court but payment outside of it. The court could have no knowledge of the disobedience of its order save upon an affidavit showing the fact of nonpayment. In such a case, where the contempt is a constructive one, in order to invest the court with jurisdiction to punish for it, it is essentially a prerequisite to the exercise of such jurisdiction that an affidavit setting forth the fact of noncompliance with the order should have been presented to the court.”

Joe Passalacqua is ordered discharged from further custody and the bail heretofore furnished by him in this proceeding is exonerated.

Kaufman, J., concurred.