Opinion
Rehearing Denied March 29, 1929
Hearing Granted by Supreme Court April 25, 1929.
Application by R. Harold Brown for a writ of prohibition to the Superior Court of the State of California in and for the City and County of San Francisco and Frank H. Dunne, Judge thereof. Peremptory writ granted.
COUNSEL
Sullivan & Sullivan and Theo. J. Roche and T.L. Breslauer, all of San Francisco, for petitioner.
John E. Manders, of San Francisco, for respondents.
OPINION
NOURSE, J.
This is an original proceeding for a writ of prohibition, restraining respondent superior court from taking any action upon an order to show cause directed to petitioner. In June, 1914, in an action duly instituted for the purpose, the then wife of petitioner, Clara Brown, obtained an interlocutory decree of divorce from petitioner, with an award to her of alimony in the sum of $100 per month. In October, 1927, an action was commenced in the superior court in the city and county of San Francisco by one Ida M. Brown against this petitioner and others, involving the title and ownership of certain shares of capital stock. This petitioner, who is a resident of the state of Louisiana filed his answer in this second action, entered into the state of California and came to the city of San Francisco for the sole purpose of attending upon the sessions of said superior court as a witness and as a party defendant in defense of his property interests in said litigation.
While petitioner was in attendance upon said court and under examination as a witness therein, an order to show cause was issued from another department of said court in the divorce proceeding above mentioned. That order cited this petitioner to appear and show cause why he should not be punished for contempt of court for failing to pay to his former wife the alimony awarded in the divorce decree amounting to the sum of $23,000. In answer to the citation this petitioner appeared specially and moved to quash the service, upon the ground that he was immune from service of process because he was a nonresident and had entered the state solely for the purpose of attending as a witness and as a party defendant in an action pending in the superior court. The respondents present two grounds in their demurrer to the petition— that it does not state sufficient grounds for relief, and that petitioner has another plain, speedy, and adequate remedy in the ordinary course of law. The facts upon which the plea of immunity was based are set forth in this petition, and are, of course, admitted by the demurrer. The superior court having denied the plea and threatened to proceed with the hearing of the order to show cause, the petitioner claims that further proceedings on the part of the superior court are in excess of its jurisdiction, under the well-settled rule that a nonresident, who has entered this state solely to attend and to testify in an action pending in the courts of this state, is, while in attendance upon such trial, immune from service of process in another proceeding, Hammons v. Superior Court, 63 Cal.App. 700, 707, 219 P. 1037, and cases cited; Stewart v. Ramsay, 242 U.S. 128, 129, 37 S.Ct. 44, 61 L.Ed. 192.
The respondents argue that the rule should not be applied to a divorce proceeding because the superior court has continuing jurisdiction to enforce its orders in such cases. This jurisdiction over the subject-matter is not disputed, but contempt proceedings arising from the alleged refusal to comply with the terms of a divorce decree are special proceedings, which can be initiated only by the service of new process. Section 1212, Code Civ.Proc.; 5 Cal.Jur. p. 942. Before the court can acquire jurisdiction to proceed in such matters, personal service of this process must have been made upon the alleged contemnor, unless such service has been waived. It cannot be served by mail, or by notice to the attorney of record (section 1016, Code Civ.Proc.), except under special circumstances which are not involved here.
In the sections relating to proceedings for constructive contempts of this character the Code uses the terms "warrant of attachment," "order to show cause," "summons," "paper to bring a party into contempt," and "other process." The word "process" is defined in section 17, Code of Civil Procedure, as a "writ or summons issued in the course of judicial proceedings." In section 4319 of the Political Code it is defined as including all "writs, warrants, summons, and orders of courts of justice." The rule referred to exempts a party from the service of "civil process" when coming from another state, and this, we are satisfied, includes the service of an order to show cause initiating a proceeding for constructive or civil contempt.
It is argued that the petitioner should not be heard here because, having failed to pay the alimony awarded, he is in contempt of the courts of the state, citing Weeks v. Superior Court, 187 Cal. 620, 203 P. 93. But this assumes before trial the guilt of the petitioner— the fact which the trial court was called to determine. We may not indulge in that assumption, but must presume that the petitioner is not guilty and must determine the question solely upon the issue of the jurisdiction of the superior court to bring the petitioner before it for trial under the conceded facts of the case.
In this connection the language of the court in Stewart v. Ramsay, supra, in explaining the reason for the rule cited is pertinent. Page 130 of 242 U.S. (37 S.Ct. 46). "The privilege which is asserted here is the privilege of the court, rather than of the defendant. It is founded in the necessities of the judicial administration, which would be often embarrassed, and sometimes interrupted, if the suitor might be vexed with process while attending upon the court for the protection of his rights, or the witness while attending to testify." In like vein the Supreme Court of Massachusetts, in Diamond v. Earle, 217 Mass. 499, 501, 105 N.E. 363, at page 363 of the Northeastern Reporter (51 L.R.A.[N.S.] 1178, Ann.Cas.1915D, 984), said: "It is not merely a privilege of the person; it is a prerogative exerted by the sovereign power through the courts for the furtherance of the ends of justice." For the reasons given we hold that the respondent court is without jurisdiction to proceed with the hearing upon the order by which the petitioner was attempted to be brought into court.
The question whether a petitioner for a writ of prohibition has a plain, speedy, and adequate remedy in the ordinary course of law is a question which must be determined in each instance in the light of all the facts and circumstances of the particular case. Where, as here, further proceedings under the process would be void and would merely put the parties to further vexation and needless expense, this court may, in the exercise of its discretion, properly terminate the proceedings forthwith. Davis v. Superior Court, 184 Cal. 691, 696, 195 P. 390.
Let a peremptory writ issue as prayed.
We concur: KOFORD, P.J.; STURTEVANT, J.