In Re Drew
In Re Drew
Opinion of the Court
The petitioner applies for a writ of habeas corpus to discharge him from custody under an order of arrest issued by the superior court of Mendocino County upon a judgment of that court declaring him guilty of contempt of court, and imposing a penalty of five days’ imprisonment and five hundred dollars fine.
The judgment of contempt was based on an affidavit showing that in an action entitled Phil Lobree v. L. E. White Lumber Co. et al., 53 Cal. App. 85 [199 Pac. 821], judgment had been duly rendered and entered against said lumber company; that thereupon proceedings supplementary to execution had been duly instituted and an examination had been ordered before one Ornbaum, who was appointed referee for that purpose, that Drew had been ordered to appear before said Ornbaum in the city and county of San Francisco, at a specified time and place, for the purpose of being examined in pursuance of said proceeding, and that he had failed to appear in obedience to the order of the court. The judgment of contempt recites the facts upon which it was based.
In his present petition for a writ of habeas corpus the petitioner claims that there are many technical defects in the affidavit and proceedings upon which he was adjudged guilty of contempt and in the proceeding supplementary to execution upon the judgment aforesaid. None of these, except those hereinafter mentioned, is of any consequence, as they do not go to the jurisdiction of the court to institute the proceedings in contempt and render the, judg *719 ment thereon. The main points of the petition are: (1) That the order of examination before the referee was void because the examination was to be held in San Francisco and the judgment was rendered in Mendocino County, and also because the referee, Ornbaum, resided in San Francisco County, that not being the county in which the judgment was rendered; (2) because prior to the beginning of the action in which the judgment against the L. E. White Lumber Company was rendered the said lumber company had ceased to exist as a corporation by reason of its having failed to pay its annual license tax as required by law, and that in consequence of that fact no valid judgment could be rendered against it.
This matter has been before the courts many times. The order of commitment for contempt was made on January 9, 1920. Up to this time the petitioner has succeeded in avoiding the imprisonment adjudged. Prior to the proceeding in contempt here attacked the petitioner had been adjudged guilty of contempt for refusing to obey a previous order tof the court directing him to appear for examination in a previous proceeding supplementary to execution. In May, 1919, he applied to this court for a writ of
certiorari
to review and annul said order. The application was duly heard and this court on July 8, 1919, duly rendered its judgment declaring that the petitioner was in contempt of court for refusing to obey the order and affirming the judgment punishing him for contempt.
(Drew
v.
Superior
Court, 180 Cal. 711 [182 Pac. 417].) In that proceeding he did not claim that the defendant corporation had ceased to exist before the action was begun. Thereafter, another supplementary proceeding was begun in the same action, and in that proceeding the judgment of imprisonment here attacked was made. An order of examination was duly made therein and again the petitioner refused to appear for examination. He was again cited to appear upon a charge of contempt for such refusal, whereupon, before the hearing, he applied to the district court of appeal of the third district for a writ of prohibition on the general grounds that the superior court had no jurisdiction to hear and decide the charge of contempt. The cause was decided against him by the district court of appeal on October 18, 1919, and upon petition to this court a rehearing was
*720
denied.
(Brew
v.
Superior Court,
43 Cal. App. 651 [185 Pac. 680].) In his petition he made some claim that the judgment in the main case was void by reason of some extrinsic circumstances, but the opinion of the district court does not show the precise ground. The contempt proceeding in the superior court of Mendocino County then proceeded to a hearing, and on January 9, 1920, the judgment in contempt here involved was made. Thereupon, the petitioner herein filed his petition in the district court of appeal of the third district for a writ of review to annul said judgment of contempt. One of the grounds of this petition was that the judgment against the L. E. White Lumber Company upon which the proceedings supplementary and in contempt were based was void, because of the fact that prior to the beginning of said action said corporation had ceased to exist because of the forfeiture of its charter aforesaid. Thus the same contention which he makes now to this court was presented to that court for adjudication and the record of the judgment was presented to that court for review. It was there held on April 19, 1920, that the judgment was valid; that the finding therein that the corporation was in existence is final and conclusive and not open to attack in a proceeding in
certiorari. (Drew
v.
Superior Court,
47 Cal. App. 150 [190 Pac.. 374].) Its existence was not legally impossible, for it may have been a corporation
de facto,
or it may have had its corporate charter restored as provided in section 14 of the act. (Stats. 1915, p. 427.) A petition to the supreme court for rehearing was denied, and that judgment thereupon became final. It declared, in effect, that the judgment on the charge of contempt was valid.
The petition for a writ of habeas corpus is denied.
Wilbur, J., Lawlor, J., Sloane, J., and Lennon, J., concurred.
Reference
- Full Case Name
- In the Matter of the Application of Frank C. Drew for a Writ of Habeas Corpus.
- Cited By
- 34 cases
- Status
- Published