Ketscher v. Superior Court
| Decision Date | 14 July 1970 |
| Citation | 88 Cal.Rptr. 357,9 Cal.App.3d 601 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Maurice KETSCHER, Petitioner, v. SUPERIOR COURT OF the COUNTY OF FRESNO, Respondent; Donald W. KETSCHER, Real Party in Interest. Civ. 1317. |
After hearing an order to show cause, petitioner was adjudicated in constructive contempt of court for disobeying an alleged oral order of the superior court. He was fined $500 and sentenced to serve five days in the county jail. The fine was suspended, and because petitioner is a farmer he was ordered to serve the sentence in the county jail only during nighttime hours. Petitioner brings this action for writ of prohibition to enjoin the court from executing the sentence.
Petitioner does not deny that he committed the acts for which he was adjudicated in contempt. He maintains that the court's oral pronouncement on which the adjudication was based is ineffective and that the court lacked jurisdiction to hold him in contempt. Petitioner also alleges that he does not have an adequate remedy at law because the sentence will be imposed if he is not granted relief in this proceeding.
The chronology is this: On August 15, 1969, the real party in interest, hereafter referred to as real party, filed an action against petitioner for injunctive and other relief; real party and petitioner are brothers, and they are involved in a dispute over a strip of real property and certain riparian rights. The cause proceeded to trial on December 10, 1969; petitioner was represented by James S. Shepard, and real party was represented by Claude L. Rowe. On the fifth day of trial the parties entered into certain stipulations for judgment. Subsequently, Mr. Rowe moved for permission to withdraw from the stipulations, but his motion was denied. On February 18, 1970, the court commenced a hearing on Mr. Shepard's objections to certain paragraphs contained in a proposed judgment prepared by Mr. Rowe. After an extended colloquy between the court and counsel, the hearing was continued until February 27, 1970. Then, the following occurred:
On February 20, 1970, real party and his employees were removing a fence from the disputed strip of land when petitioner appeared on the scene. Petitioner objected to the removal of the fence because once it was removed his horses would escape. An argument ensued, and petitioner threw a rock through the window of his brother's automobile. It was for this provocative act that petitioner was held in contempt.
We reject real party's contention that prohibition does not lie in this case. If the court's oral pronouncement was ineffective, as petitioner contends, the court lacked jurisdiction to adjudicate him in contempt. And, since it is clear that the court intends to enforce the sentence it imposed, we will consider petitioner's contention on the merits (Commercial Bank of Spanish America v. Superior Court, 192 Cal. 395, 220 P. 422, 40 Cal.Jur.2d, Prohibition, § 49, p. 203).
It is clear that disobedience of any lawful order of the superior court is constructive contempt (Code Civ.Proc. § 1209(5)). But, under Code of Civil Procedure section 1003, a court order is...
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...the purported order was nonexistent or inoperative. (Miller v. Superior Court, 9 Cal.2d 733, 736, 72 P.2d 868; Ketscher v. Superior Court, 9 Cal.App.3d 601, 604, 88 Cal.Rptr. 357.) The petition for writ of prohibition thus properly raises both the validity of the return order and the questi......
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