Ex parte Oxman

• Citation: 100 Cal.App.2d 148,223 P.2d 66
• Decision Date: 25 October 1950
• Docket Number: Cr. 2207
• Parties: Ex parte OXMAN.
• Court: California Court of Appeals Court of Appeals

Page 66

223 P.2d 66

100 Cal.App.2d 148

Ex parte OXMAN.

Cr. 2207.

District Court of Appeal, Third District, California.

Oct. 25, 1950.

Albert L. Wagner and E. R. Vaughn, Sacramento, for petitioner.

J. Francis O'Shea, Dist. Atty., Milton L. Schwartz, Deputy Dist. Atty., and Ralph H. Lewis, Associate Counsel, all of Sacramento, for respondent.

ADAMS, Presiding Justice.

Oxman filed this petition for a writ of habeas corpus, alleging that he was unlawfully imprisoned by the sheriff of Sacramento County. He asserted that a temporary injunction was issued by the superior court of that county ordering petitioner to refrain from doing certain acts in connection with a business owned and operated by him, and that pursuant to certain proceedings the court adjudged him to be in contempt of the court for violation of said injunction, and committed him to the custody of the sheriff to serve five days' imprisonment. He contends that the order is void because he was unable to comply with the court's order, and that no finding was ever made that he was able to comply with the injunction; that he has committed no offense nor violation of said injunction, and is conducting a lawful business in a commercial zone in Sacramento, in a lawful manner.

Attached to the petition are copies of the order adjudging him guilty of contempt, his objections thereto, his motion to set aside said order, affidavits filed in the trial court by him and his attorney, and a letter purporting to be a report to Oxman by an accoustical engineer. No one of them was authenticated.

This court issued a writ of habeas corpus. In response thereto the sheriff filed a return, attached to which and made a part thereof was a copy of the commitment. He denied, for lack of information of belief, the allegations of the petition. Petitioner then filed an answer to such return, alleging that the commitment did not show that he was able to comply with the terms of the injunction, that plaintiffs' complaint failed to state a cause of action for injunctive relief, or that petitioner was maintaining a nuisance, and that, on the contrary, the testimony at the hearing in the contempt proceeding tended to show that he attempted to comply with the injunction. He also alleged that a determination of the matter could not be had without the record of the proceedings of the superior court, and that it was necessary to have, in the record before this court, the complaints, both original and amended, the demurrer of defendant, the order to show cause, the affidavit of Oxman filed June 20, 1949, the minute order granting the injunction, the court's opinion, the injunction, he answer to the complaint, the affidavit for contempt, the order adjudging defendant guilty of contempt, and numerous other of the records in the proceeding, including the testimony at the hearings. But he filed none of them, though he was warned of the necessity for so doing, and extensions of time were granted; nor was any evidence presented before this court. Strictly speaking, then, we have before us only the petition, the return and the answer thereto.

In his brief before this court petitioner argues that the contempt order was beyond the court's jurisdiction, because (1) the complaint in the lower court did not state a cause of action for which an injunction could be granted; (2) that the trial court did not find that it was possible for petitioner to comply with the injunction; and (3) that he did not violate it. We are, however, unable to determine these matters for lack of a record. While petitioner was apparently aware of the fact that such record was essential, he took no steps to provide it. The burden was upon him to do so. In re Egan, 24 Cal.2d 323, 330, 149 P.2d 693, 697, the Supreme Court said, in a habeas corpus proceeding: 'The function of the petition is to obtain the issuance of the writ. The return is not to the petition, but to the writ. Issues are thereupon joined by denial or other controversion of the material matters set forth in the return, Pen.Code, § 1484, and were so joined in this case by the petition, considered as a traverse to the return pursuant to the stipulation. Thereupon, the petition being considered the answer, allegations as to any new matter therein are deemed denied. By analogy, the return is the complaint and the traverse (the petition) is the answer. New matter set up in the answer is deemed denied and must be proved by the parties alleging it, namely the petitioners. In re Collins, 151 Cal. 340, 342, 343, 90 P. 827, 91 P. 397, 129 Am.St.Rep. 122.'

In Goodrich v. Superior Court, etc., 92 Cal.App. 695, 268 P. 669, where review of an order adjudging Goodrich guilty of contempt of court was sought, it was held that since petitioner was the party interested in having the action of the lower court reviewed, it was his duty to see that a return was filed, and a complete record made up, just as it is the duty of an appellant to perfect his record on appeal; and that the appellate court was limited to a review of the properly authenticated records. And it was also said that upon the issuance of the writ the petition became functus officio, and review could not be rested upon any of the allegations found therein, citing Donovan v. Board of Police Commissioners, 32 Cal.App. 392, 397, 163 P. 69, but was limited to the authenticated record of the proceedings themselves.

In numerous other habeas corpus proceedings, not involving imprisonment for contempt, however, it has been said that the burden is upon a petitioner to establish grounds for his release. See In re Williams, 183 Cal. 11, 14, 190 P. 163; In re McVickers, 29 Cal.2d 264, 285, 176 P.2d 40; In re Staser, 84 Cal.App.2d 746, 749, 191 P.2d 791, holding that the presumption of regularity of the proceedings in support of a judgment prevails in the absence of evidence to the contrary. See, also, In re Risner, 67 Cal.App.2d 806, 811, 155 P.2d 667; In re Knight, 62 Cal.App.2d 582, 586, 144 P.2d 882; Middlebrook v. Superior Court, 21 Cal.2d 579, 134 P.2d 241; In re Bell, 19 Cal.2d 488, 500, 122 P.2d 22.

As for petitioner's contention that the complaint in the trial...