Opinion
Docket No. 1073.
July 17, 1933.
APPLICATION for Writ of Prohibition to prevent the Superior Court of San Diego County from issuing commitment require confinement. Lloyd E. Griffin, Judge. Writ granted.
The facts are stated in the opinion of the court.
James F. Armstrong and Edgar B. Hervey for Petitioner.
Shreve Shreve and Ray Miller for Respondents.
This is an application for a writ of prohibition to prevent the issuance of a commitment requiring the confinement of petitioner. The petitioner alleges that he appeared before the respondent court and judge on May 13, 1933, in response to an order to show cause why he should not be punished for failure to comply with the terms of a previous order of the court requiring him to pay certain sums of money at certain named dates. It is alleged that a hearing was had on the date named and the petition purports to set forth the evidence received at this hearing, all of which is to the effect that the petitioner was then entirely without funds and without ability to meet the terms of the previous order, it being also alleged that this evidence was uncontradicted. After alleging that at the conclusion of this hearing the court found the petitioner to be in contempt and ordered him confined in the county jail until such time as he paid the sum of $50 on account of the previous order, the petition alleges that said court and judge will, unless restrained, issue a commitment based upon said order of May 13, 1933, requiring the confinement of petitioner until such time as he pays the sum of $50 on account of said previous order.
[1] An alternative writ was issued prohibiting the respondents from issuing, until the further order of this court, the commitment referred to in the petition. When the matter came on for hearing the respondents appeared and admitted that in making the order of confinement on May 13, 1933, the court acted in excess of its jurisdiction, and consented that a peremptory writ issue herein.
A peremptory writ of prohibition will issue prohibiting the respondents from issuing the commitment above referred to.
Marks, J., and Turrentine, J., pro tem., concurred.