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Francis v. Superior Court (Delorey v. Same)

District Court of Appeals of California, Second District, Second Division
Aug 9, 1934
35 P.2d 634 (Cal. Ct. App. 1934)

Opinion

Hearing Granted by Supreme Court Oct. 8, 1934.

Petitions by George H. Francis and E. H. Delorey and another against the Superior Court in and for the County of Los Angeles and another, for a writ of review and certiorari to review proceedings in which petitioners were adjudged guilty of contempt of court.

Judgments and orders annulled and fines paid under protest ordered returned.

COUNSEL

Richard H. Cantillon, of Los Angeles, for petitioner George H. Francis.

Frank L. Simons and A. L. Bartlett, both of Los Angeles, for petitioners E. H. Delorey and Boyd C. Barrington.

Libby & Sherwin and Warren E. Libby, all of Los Angeles, for respondents.


OPINION

ARCHBALD, Justice pro tem.

Petitions were filed herein to review proceedings in the superior court of Los Angeles county in which petitioners were adjudged guilty of contempt of that court and fined $500 each, in default of payment of which each was ordered committed to the custody of the sheriff to be imprisoned "at the rate of one day for each $2.00 of said fine." To avoid being so imprisoned such fines were paid under protest by each petitioner.

It is urged that the affidavit upon which the order to show cause against petitioners was issued is insufficient to warrant the issuing thereof and the conducting of a hearing thereon.

The affidavit was made by Edward S. Shattuck, a deputy city attorney of Los Angeles, and recited the history of the condemnation case of City of Los Angeles v. Horn, case No. 305574 of the files of the superior court of Los Angeles county, in so far as it applies to the defendant Simon Verghis therein named. It shows that said defendant filed an answer in said case on July 28, 1930, through his attorney, petitioner E. H. Delorey; that thereafter and before trial other attorneys were substituted in the place and stead of said Delorey; that thereafter said case was tried in department 11 of said court before the Honorable Emmet H. Wilson, sitting without a jury, as to the parcel in which said Verghis was interested, resulting in an interlocutory judgment awarding the latter the sum of $1; that thereafter a new trial was granted on motion of petitioner Boyd C. Barrington and the case as to such parcel was set for trial on November 27, 1931, on notice served on said E. H. Delorey; that said retrial came on before said Honorable Emmet H. Wilson, petitioners Delorey and Barrington representing Verghis, and the city attorney, through his deputy Thurmond Clarke, representing plaintiff; that the award to said Verghis was at that time reduced to nothing; that the records of said action "disclose that no further action of any kind or character was taken with reference to the interest of the defendant Simon Verghis" in said proceeding until June 7, 1932, when a motion for a new trial as to such interest was made before the Honorable Lewis Howell Smith, a judge of said court, and granted on stipulation of the parties, petitioners Delorey and Barrington representing Verghis and petitioner Francis, deputy city attorney, representing the plaintiff, and that immediately, "upon stipulation of counsel," said cause was called for retrial, Charles G. Frisbie was sworn and testified for said defendant and an award of $2,500 was made in favor of Verghis on July 10, 1932; that said award was thereafter paid to petitioner Delorey, as assignee of Verghis, and said interlocutory judgment was satisfied by Delorey; that on said "7th, 8th, 9th and 10th days of June, 1932, Hon. Emmet H. Wilson was sitting in Department 4" of said court "and was at all times during said days available for his usual duties"; that all of said facts "were at all times known" to petitioners; and "that they and each of them, with full knowledge of said facts, intentionally did the acts disclosed by said records."

It will be seen at once that the act intended to be charged as contemptuous was the making of the motion for a new trial before another judge while the judge before whom the case was tried was available therefor, contrary to the provisions of section 661 of the Code of Civil Procedure, which says, so far as pertinent here: "The motion for a new trial shall be heard and determined by the judge who presided at the trial; provided, however, that in case of the inability of such judge, or if at the time noticed for hearing thereon he is absent from the county where the trial was had, the same shall be heard and determined by any other judge."

Petitioners urge that such requirement is directory only and cite as authority for such contention the case of Pappadatos v. Superior Court, 209 Cal. 334, 287 P. 342. That was an application for a writ of prohibition to restrain further proceedings in the trial court after a motion for a new trial was granted. It is true the motion there was made before a judge other than the one who tried the case, but the question involved did not turn on that fact, and it does not appear that the judge before whom the case was tried was available. The court simply held that the word "shall" in the last paragraph of such section (not quoted here), requiring the motion to be "orally" argued or submitted without oral argument, as the judge may direct, not later than ten days before the expiration of the time within which the court has power to pass on the same, if heard by a judge other than the judge who tried the case, was directory only, and that failure to comply with it did not invalidate the proceedings. In such case the motion was submitted about three days prior to the expiration of the period within which the court had power to act thereon. An examination of the points and authorities filed with the petition for the writ shows that such is the only point urged therein, no attempt being made to show that the judge who tried the case was available.

We cannot, therefore, agree that the part of the section quoted has been held to be directory only. But in our opinion even if held to be mandatory, the only effect would be to make the proceedings void. From that alone it would not necessarily follow that petitioners were contemptuous. We think it cannot be gainsaid that if petitioners had gone to Judge Wilson and explained to him that in their opinion a great injustice had been done a litigant because he was unable to get his proof before the court, and that the city was willing that justice be done by stipulating that a new trial could be had, and that if Judge Wilson had been of the opinion that the matter should be heard, but had no time for it and had told them to go before any other judge with it, that no contempt could possibly have been involved, even assuming that such action would have been a violation of a mandatory provision of the code and in consequence the proceeding was void. The evidence shows that no attempt was made to have a hearing before Judge Wilson. It also shows that whatever arrangements were made to have the motion heard before Judge Smith were made by petitioner Delorey, and that neither petitioners Barrington nor Francis knew where it was to be heard, until the arrangement had been perfected. They then met together in the chambers of Judge Smith, where apparently the only thing discussed was whether the motion would be stipulated to by the plaintiff. Finding that that would be done, Judge Smith consented to hear it and did so. Even the evidence does not show that petitioners Barrington and Francis knew that the matter was before Judge Smith without the consent of Judge Wilson having been first obtained; so even assuming that the evidence supports a conclusion that the action of petitioner Delorey was contemptuous, it does not support such a conclusion as to the other two.

Turning then to the affidavit, we find it contains no allegation to the effect that Judge Wilson was not fully advised at all times as to what was happening, or that it was not all done with his consent and approval. In our opinion some such statement was necessary in order to show upon the face of the affidavit that a contempt was committed, even as to petitioner Delorey, who made the arrangement; and certainly it would have to charge the other two with knowledge of what Delorey did or with participating in the contemptuous arrangement, before a contemptuous act could be said to be properly charged as against them.

In a contempt of the kind charged here, it is jurisdictional that the affidavit should charge a contempt on its face, and if it fails so to do any judgment based thereon is void and will be so declared upon certiorari. Frowley v. Superior Court, 158 Cal. 220, 228, 110 P. 817; Hutton v. Superior Court, 147 Cal. 156, 159, 81 P. 409, 410. The absence of essential facts in the affidavit cannot be cured by proof on the hearing or "found by the court in its decree adjudging the accused guilty of contempt. The proceedings are void ab initio." Hutton v. Superior Court, supra.

Judgments and orders annulled, and it is ordered that the fines paid under protest be returned to the respective petitioners.

We concur: CRAIG, Acting P. J.; DESMOND, J.


Summaries of

Francis v. Superior Court (Delorey v. Same)

District Court of Appeals of California, Second District, Second Division
Aug 9, 1934
35 P.2d 634 (Cal. Ct. App. 1934)
Case details for

Francis v. Superior Court (Delorey v. Same)

Case Details

Full title:FRANCIS v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY et al.[*] DELOREY…

Court:District Court of Appeals of California, Second District, Second Division

Date published: Aug 9, 1934

Citations

35 P.2d 634 (Cal. Ct. App. 1934)