The opinion of the court was delivered by

This was an appeal from a judgment and sentence finding the appellant guilty of a contempt of court. The respondent moves to dismiss on the ground that such a judgment is not appealable. But as the right of appeal seems to be expressly given by § 791, Code Proc., the motion is denied.

The first point raised by the appellant is that the court erred in not granting his motion to vacate the proceedings on the ground of the insufficiency of the affidavit. The alleged offence consisted in the violation of an order of the court to produce certain books belonging-to the Tacoma Trust and Savings Bank, for which a receiver had been appointed, and the affidavit failed to show that appellant had the books in his possession or under his control. He was not a party to the original action. It is not contended by respondent that the affidavit does contain any such allegation, even in substance, and their only reliance seems to be upon the fact that appellant was the president of said bank. It cannot be assumed from that, however, that he had possession of the books in question. The contempt was not one committed in the presence of the court, and the position of appellant is well supported by the authorities that an affidavit used as a basis for the institution of such proceedings must show that it was within the power of the party prosecuted to com*686ply with the order of the court, and in this instance it was necessary that the affidavit should state facts sufficient to show prima facie at least, that the appellant had the books in question under his control, so that it was within his power to produce them in obedience to the order. The fact that proof was subsequently introduced upon the trial tending to show that he did have possession of the books is immaterial, for it was necessary that there should have been a sufficient affidavit in order to give the court authority to proceed with the hearing.

Reversed.