In Re Passalacqua

This is a proceeding in habeas corpus seeking the release of Joe Passalacqua.

On July 7, 1954, an affidavit was filed in the Superior Court in and for the City and County of San Francisco charging Passalacqua with contempt of court in the failure to pay to his divorced wife a certain sum for the support of his minor child and an additional sum as attorneys’ fees as ordered to be paid by an interlocutory decree of divorce theretofore entered. An order to show cause was issued on this affidavit and after a hearing thereon the court by minute order entered on July 23, 1954: “ordered defendant to purge content (sic) by com *231 plying with the provisions of a prior order re support and attorneys’ fees. ’ ’

No order was made continuing the contempt proceeding for further action of the court or directing Passalacqua to return to court at any later date. That proceeding was terminated with the order of July 23.

On August 25, 1954, without the filing of any supporting affidavit, a warrant of attachment was issued to bring Passalacqua before the court to show cause why he should not be punished for contempt in “disobeying the mandate of the court.” Thereafter, pursuant to such…

I dissent.

The McCarty case is based wholly on the technical ground *232 that after he had been given five days to comply with the alimony order McCarty was committed for contempt without an affidavit having been filed showing that he had not paid and without further hearing.

Such is not the case here. The order of commitment of September 14, 1954, recites (and these recitals are binding upon us) that pursuant to an “affidavit for order to show cause in re contempt, ’ ’ and pursuant to an order to show cause issued thereon, the defendant appeared in person on the date set—September 14, 1954; that evidence was taken, that defendant “admitted that he was in default of the orders of said court”; that the court finds that defendant “had and has the ability to pay”; and made no valid excuse for his failure' to comply.

This takes the case wholly outside the McCarty case. If, as argued by petition, but no proof being made thereof, a warrant of attachment was issued on August 25, 1954, it is wholly immaterial. The order of commitment recites that an affidavit and order to show cause was filed. The defendant appeared at the time set and voluntarily took part in the hearing without,…

Warren Sapiro and Allan L. Sapiro for Frances Passalacqua, Real Party in Interest.

This is a proceeding in habeas corpus seeking the release of Joe Passalacqua.

On July 7, 1954, an affidavit was filed in the Superior Court in and for the City and County of San Francisco charging Passalacqua with contempt of court in the failure to pay to his divorced wife a certain sum for the support of his minor child and an additional sum as attorneys' fees as ordered to be paid by an interlocutory decree of divorce theretofore entered. An order to show cause was issued on this affidavit and after a hearing thereon the court by minute order entered on July 23, 1954: "ordered defendant to purge content (sic) by complying with the provisions of a prior order re support and attorneys' fees."

No order was made continuing the contempt proceeding for further action of the court or directing Passalacqua to return to court at any later date. That proceeding was terminated with the order of July 23.

On August 25, 1954, without the filing of any supporting affidavit, a warrant of attachment was issued to bring Passalacqua before the court to show cause why he should not be punished for…