Opinion
May 24, 1907.
Safford A. Crummey, for the appellant.
H.A. Rosenberg, for the respondent.
This order adjudged the defendant guilty of contempt in willfully refusing to be sworn or to affirm and testify before a referee in proceedings supplemental to judgment. The plaintiff obtained a judgment against the defendant, an execution upon which was issued and returned unsatisfied; whereupon an order in supplemental proceedings was issued requiring the defendant to be examined, and as the defendant was confined in jail, a referee was appointed to take his examination. The referee appeared at the jail, when the defendant refused to be sworn or to answer any questions. The referee certified this fact to the court. The plaintiff, upon the certificate of the referee and an affidavit of the plaintiff's attorney, and upon notice of motion served upon the defendant, applied for an order punishing the defendant for contempt. The defendant appeared and opposed that motion, but it was granted, and the defendant was committed to the county jail until he should consent to be sworn and submit to an examination under the order in supplemental proceedings.
There is only one trouble in this proceeding, and that is, it was instituted by a notice of motion and not by an order to show cause, as required by section 2269 of the Code. Under that section the court or judge authorized to punish for the offense may in its or his discretion make an order to show cause why the accused should not be punished for the alleged offense, or issue a warrant of attachment directed to the sheriff, commanding him to arrest the accused and bring him before the court or judge. The Legislature seems to have provided that this proceeding must be instituted either by an order to show cause or a warrant. The court, therefore, was without jurisdiction to entertain the proceeding based upon a notice of motion.
The order appealed from must be reversed, with ten dollars costs and disbursements, and the application denied, with ten dollars costs.
PATTERSON, P.J., McLAUGHLIN, CLARKE and LAMBERT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.