Ex parte Ferguson

• Decision Date: 15 March 1954
• Docket Number: Cr. 2993
• Citation: 268 P.2d 71,123 Cal.App.2d 799
• Court: California Court of Appeals Court of Appeals
• Parties: Ex parte FERGUSON.

Page 71

268 P.2d 71

123 Cal.App.2d 799

Ex parte FERGUSON.

Cr. 2993.

District Court of Appeal, First District, Division 1, California.

March 15, 1954.

Hearing Denied April 14, 1954.

Murle C. Shreck, E. R. Vaughn, Sacramento, for petitioner.

Alden Ames, San Francisco, for respondent.

BRAY, Justice.

Petition for writ of habeas corpus to secure release from custody under a commitment for contempt of court.

Questions Insolved.

1. Upon a hearing of a contempt charge can the defendant be compelled to testify? 2. Is the affidavit for the order to show cause sufficient concerning disobedience of the court's order? 3. Regularity of order appointing referee. 4. Effect of commitment on two counts, one being erroneous.

Record.

In an action in the Superior Court of Alameda County entitled 'M. Allen, Plaintiff, v. Mervin L. Gardner et al., Defendants; Mervin L. Gardner, Cross-Plaintiff, v. E. K. Ferguson, Jr., et al., Cross-Defendants' Mervin L. Gardner obtained judgment for $54,237.87 against certain cross-defendants, including E. K. Ferguson, Jr., Gordon A. Ferguson and petitioner, Reed C. Ferguson, as copartners doing business under the fictitious name and style of Ferguson Bros., a copartnership. Thereafter, in a supplementary proceeding, the individual interests of said partners in said partnership were charged with the payment of said judgment and one George Finster was appointed receiver of all assets and property of said partnership to satisfy the debts of said partnership and said judgment. Said defendants were ordered to deliver such assets and property to said receiver. Thereafter there was filed in said court 'Affidavit of George Finster as Receiver for Obtaining Order to Show Cause.' An order to show cause was thereupon issued directing the three Fergusons to appear and show cause why they should not be punished for contempt for refusal to surrender to the receiver the property belonging to them individually and as copartners. At the hearing of the order to show cause petitioner was found guilty of contempt of court for (1) refusing to be sworn or testify, and (2) failing to comply with said order requiring the delivery of said property to the receiver. Petitioner was then committed to the Alameda County jail for five days 'or until he shall be discharged pursuant to law' and also ordered to pay a fine of $250.

1. Refusal to Testify.

At the hearing of the order to show cause petitioner refused to be sworn or to testify. There can be no question but that he had the right to so refuse and that the court erred in finding him guilty of contempt in so doing. In Ex parte Gould, 99 Cal. 360, 33 P. 1112, 21 L.R.A. 751, the petitioner was ordered to show cause why he should not be adjudged guilty of contempt in violating an injunction. Upon the hearing, he refused to be sworn or testify as a witness on the ground that he could not be compelled to be a witness against himself as the proceeding was of a criminal nature. The trial court committed him for contempt. The Supreme Court held that contempt of court is a criminal offense and that both article I, section 13 of the Constitution and section 1323 of the Penal Code provide that a defendant in a criminal action cannot be compelled to be a witness against himself; that the court could not compel the petitioner to be sworn or to testify and could not find him guilty of contempt for his refusal. To the same effect, Hotaling v. Superior Court of State of California in and for City and County of San Francisco, 191 Cal. 501, 217 P. 73, 29 A.L.R. 127 (contempt for violation of order directing cancellation of corporate stock); Brophy v. Industrial Accident Commission, 46 Cal.App.2d 278, 115 P.2d 835 (contempt proceeding in Industrial Accident Commission for failing to obey commission's order to supply medical reports). Respondent contends that because petitioner filed a verified answer to the affidavit for the order to show cause denying its allegations he waived his right to refuse to testify. The answer has no such effect. It is merely a traverse of the pleading which brought him before the court, similar to the plea of not guilty in a criminal case. In a contempt proceeding 'the affidavits of the defendant constitute the answer or plea.' In re Roth, 3 Cal.App.2d 226, 229, 39 P.2d 490, 491.

2. Sufficiency of the Affidavit.

Petitioner contends the affidavit was insufficient to give the court jurisdiction to find him guilty of contempt of violating the court's order, the remaining charge. The affidavit sets forth that affiant is the receiver appointed in the order, identifying it; that pursuant to the authority vested in him he made demand upon the cross-defendant partners to deliver to him the property and equipment belonging to them; that the demand was refused; that prior to his appointment, supplementary proceedings were had and petitioner was examined under oath concerning the location of the property of the cross-defendants; that petitioner 'gave testimony in regard thereto that was manifestly evasive, and he made pretense of ignorance of the facts concerning the property of cross-defendants, for the sole purpose of placing difficulties in the way of the collection of the judgment.' On information and belief he stated 'the fact to be that a large amount of equipment belonging to the cross-defendants, of very considerable value, is now located in or near the City of Red Bluff, California; that other pieces of equipment are located on Mare Island; the exact description and number of pieces of such equipment can only be ascertained from said cross-defendants;' that in view of the attitude of petitioner and cross-defendants' attorneys affiant believes that further supplementary proceedings for examination of cross-defendants 'would be of no avail.'

In In re Carpenter, 36 Cal.App.2d 274, at page 277, 97 P.2d 476, at page 477, the court said: 'It is elementary that on habeas corpus the court is limited to the single question of jurisdiction. Adjudication of questions of fact, the court having jurisdiction of the person and subject-matter, cannot be reviewed.' Thus our inquiry here is limited to the question of whether the affidavit was sufficient to give the trial court jurisdiction to hear the matter. See Groves v. Superior Court, in and for Los Angeles County, 62 Cal.App.2d 559, 145 P.2d 355; In re DuBois, 120 Cal.App.2d 890, 262 P.2d 340. Respondent concedes that petitioner had notice of the order appointing the receiver and expressly waived any claim that such fact had to be set forth in the affidavit, in view of the fact that prior to the contempt proceeding petitioner had unsuccessfully petitioned this court for a writ of prohibition to annul the order. See Mattos v. Superior Court of Merced County, 30 Cal.App.2d 641, at page 647, 86 P.2d 1056, at page 1059, to the effect that the failure to aver notice of an injunction is not required in an affidavit for contempt in violating that injunction, as, 'The court which tries the original action will take judicial notice of the fact that the accused person was present in court personally or by attorney and participated in the hearing at which the injunction was granted.'

The affidavit alleges demand by the receiver upon petitioner and his partners for the property and equipment belonging to them and their refusal to deliver them to him; that there is belonging to said partners large amounts of equipment at Red Bluff and Mare Island. This constitutes sufficient charge of failure to obey the court order to give the court jurisdiction to hear and determine whether petitioner should be punished for contempt.

Petitioner contends that the court improperly admitted the transcript of petitioner's testimony on order of examination and a chattel mortgage executed by the partners prior to the appointment of the receiver. These are all matters that do not go to the question of jurisdiction. However, we might point out that the record shows that disregarding these documents there is still ample evidence to support the court's findings. So if these documents were inadmissible (a question we deem it unnecessary to determine) no harm was done. The evidence was sufficient, too, to support the court's finding that petitioner was able to comply with the court's order. Petitioner's contention in this behalf was that the partnership property was not in his possession but in that of one of the other partners. It is elementary that each partner has the right to possession and control of the partnership property.

As said in In re Risner, 67 Cal.App.2d 806, 155 P.2d 667, in habeas corpus proceedings the order punishing for contempt is not subject to attack on the ground of error of the court in the exercise of its jurisdiction, or of irregularities of procedure subsequent to the acquisition of jurisdiction, nor may the reviewing court inquire as to the correctness of the findings which constitute the basis of the conviction or the findings of fact recited in the order of commitment. "The court will not consider the sufficiency of the evidence to sustain the charge or to support the findings as to the existence of facts--e. g., ability of the petitioner to comply with the violated order." 67...