Ex parte Elias

• Citation: 25 Cal.Rptr. 739,209 Cal.App.2d 262
• Decision Date: 05 November 1962
• Docket Number: Cr. 60
• Court: California Court of Appeals
• Parties: In re Harry ELIAS On Habeas Corpus.

Page 739

25 Cal.Rptr. 739

209 Cal.App.2d 262

In re Harry ELIAS On Habeas Corpus.

Cr. 60.

District Court of Appeal, Fifth District, California.

Nov. 5, 1962.

George & Powell by Jay W. Powell, Fresno, for petitioner.

E. Clarke Savory, Dist. Atty., by John D. McFeeters, Deputy Dist. Atty., Fresno, and Daniel C. Miller, San Francisco, for respondents.

CONLEY, Presiding Justice.

Harry Elias petitioned this court for a writ of habeas corpus by which he seeks release from the custody of the Sheriff of Fresno County by reason of a commitment for civil contempt ordered by the superior court in the case of Industrial Asphalt of California, Inc. v. Harry Elias and Columbia Casualty Company, Fresno County no. 115247.

One of the considerations leading to the issuance of the writ by this court was the recital in the petition that upon the presentation of a substantially identical petition to the Fresno County Superior Court said court '* * * took no formal action and refused to entertain * * * such petition * * * on the ground it had no jursdiction to hear the petition, and that the proper court to hear it was the Fifth Appellate District Court of Appeal.'

Assuming that the sole ground for the refusal was as alleged, the superior court was in error, for the judges of that court had the duty to consider the application and, if the petition was meritorious, to issue the writ even though the legality of an order of commitment previously made by that court was under attack.

Hostorically and practically, the writ of habeas corpus is one of the most important legal safeguards of the American citizen.

'A free people venerate this ancient writ * * * as a fundamental guaranty and protection of their right of liberty and as the most effective remedy known to the law for securing release from unlawful restraint.' (25 Am.Jur., Habeas Corpus, § 2, p. 144.)

By our state Constitution the judges of the superior court are expressly authorized to issue the writ (Cal.Const., art. VI, § 5), having an equal initial right in this respect with the justices of the Supreme Court and of the District Courts of appeal.

Habeas corpus is concerned only with jurisdiction; it can not be invoked for the purpose of correcting errors in a trial record, except those relating to jurisdiction; the superior court should not refuse to consider a petition for a writ of habeas corpus on the ground that the validity of an order of the same court is under attack. For obvious reasons, particularly where the taking of evidence is involved, the local court is often better able to render timely and effective relief than a court of appeal, and it is for this reason that appellate courts frequently refuse to issue the writ unless application has first been made therefor to the superior court or unless a good reason is shown in the petition for failure to have made such application. (24 Cal.Jur.2d, Habeas Corpus, § 68, pp. 522-526; § 76, pp. 541-542; In re Brune, 113 Cal.App. 254, 298 P. 80; In re Trainor, 5 Cal.App.2d 593, 43 P.2d 579; 39 C.J.S. Habeas Corpus § 78, pp. 623-624.)

The return filed by the sheriff showed that Harry Elias is in custody by virtue of a warrant of commitment issued October 3, 1963, for contempt in that, having the ability to do so, he failed and refused to pay into court the sum of $39,000, as ordered by the Superior Court of Fresno County. The petition for the writ was by agreement of the parties considered to be the traverse of the return. It was further stipulated that for the purpose of this proceeding the entire contents of the file in Industrial Asphalt of California, Inc. v. Harry Elias and Columbia Casualty Company, Fresno County no. 115247 should be considered in evidence. No additional evidence was offered by either party.

Action no. 115247 was commenced in the Superior Court of the County of Fresno on May 18, 1962, by the filing of a complaint by Industrial Asphalt of California, Inc., a California corporation, against Harry Elias and his surety, Columbia Casualty Company, a New York corporation. The complaint is in two counts. In the first cause of action it is alleged that the County of Kings, State of California, entered into a contract with Harry Elias on February 21, 1961, by which he promised and agreed to install street paving, a domestic water supply, a sewer system and a drainage system in Armona Estates, a subdivision in Kings County, and that before entering into the performance of said work Mr. Elias, as principal, and the defendant surety company made, executed and delivered to the County of Kings their written contract and bond, by the terms of which it was provided that if the contractor or any subcontractor failed to pay for materials or supplies or for work or labor done, the principal and the surety would pay for the same and that in case an action were brought upon the bond a reasonable attorney's fee would be paid to the prevailing party; that said bond inured to the benefit of all materialmen and laborers who might work upon the project; that the work called for by said contract was completed, that it was accepted by Kings County and that notice of acceptance and completion was recorded November 22, 1961; that between August 25 and November 16, 1961, the plaintiff sold and delivered to the defendant contractor, goods, wares and merchandise including rock, sand, gravel, untreated rock base and asphalt paving materials, furnished transportation thereof and paid the sales tax thereon in the total reasonable and agreed sum of $27,855.62. The complaint further alleges that during the years 1961 and 1962 plaintiff furnished material and labor to the defendant contractor on various jobs and that one of them was for the Department of Public Works of the State of California involving the construction and improvement of a portion of Mt. Whitney Avenue near Riverdale in Fresno County; that from time to time plaintiff received sums of money from the defendant contractor on account of said various jobs; that on February 6, 1962, plaintiff received from defendant contractor the sum of $44,898.27, of which plaintiff applied the sum of $22,938.34 in full payment of the balance owing to plaintiff from said defendant contractor, on the Armona Estates contract; that the balance of said payment of $44,898.27, being the sum of $21,959.93, was applied by plaintiff on account of said Mt. Whitney job; that a dispute has arisen between the defendant contractor and plaintiff as to the correct application of said sum of $44,898.27 in that the defendant contractor contends that all of said sum should have been applied to said Mt. Whitney job. The pleading continues by stating that in the event such contention of defendant contractor is determined to be correct, there would remain an unpaid balance due plaintiff for materials and labor furnished on said Armona Estates job in the sum of $22,938.34; that in such event no part of such sum would have been paid to plaintiff, and defendants would be liable to plaintiff in said amount under the provisions of the bond above alleged. The further request is made for $2,500 as attorneys' fees.

The second cause of action in the complaint alleges that on or about September 15, 1961, the State of California entered into a written contract with Elias by the terms of which he agreed to furnish work and materials for the grading and servicing of a section of the state highway in Fresno County on Mt. Whitney Avenue, which was known as the Mt. Whitney road job; that the contractor entered upon the performance of said work and that a bond was furnished by the defendant surety company; that by its terms said bond inured to the benefit of any and all materialmen, persons, companies or corporations furnishing materials or labor; that the work was finished and a notice of acceptance and completion was filed and recorded on or about April 6, 1962; that between December 26, 1961, and April 4, 1962, plaintiff sold and delivered to the contractor at his special instance and request materials, together with the transportation of the same, of the reasonable and agreed sum of $127,500.66 and that payment for the materials, equipment and labor so furnished was covered by the bond in question; that the application made by the plaintiff of the payment of $44,898.27, as alleged in the first cause of action, namely, $22,938.34 in payment of the balance of the Armona Estate job and $21,959.93 on the Mt. Whitney job, was correct in the opinion of plaintiff; that said sum of $21,959.93 was the only amount paid to plaintiff by the contractor on said Mt. Whitney job and that there is left a balance unpaid on account of said job of $105,540.73. Request is also made for the payment of a $2,500 attorney's fee.

The prayer of the complaint on the first cause of action is that if the defendant contractor's contention relative to the application of payments to plaintiff is determined to be correct, plaintiff be awarded judgment for $22,938.34, together with interest, $2,500 attorneys' fees and costs. The prayer as to the second cause of action asks for the sum of $105,450.73, less any amount that the court may award plaintiff as principal under the first cause of action, together with interest, attorneys' fees and costs.

The defendant surety company filed an answer denying that any sum is due plaintiff and a cross-complaint alleging that in reliance upon an agreement of indemnity executed by the cross-defendants, Harry Elias and Patricia Elias, his wife, the cross-complainant executed its bonds no. 449564 and 405412 in the penal sums of $126,141.25 and $55,423, as surety for the contractor; that the surety has been sued by a subcontractor for sums in excess of $105,000; that by the agreement of indemnity above referred to the contractor agreed to indemnify the surety against any and all liability arising out of the matters bonded against; that the contractor and his wife further agreed in their contract that the...