Burns

This is a proceeding in certiorari, to review an order of the superior court of the city and county of San Francisco, adjudging the petitioner guilty of contempt.

A writ of review can only be granted .when the court or tribunal to which it is directed has exceeded its jurisdiction. (Code Civ. Proc., sec. 1068.) In a proceeding for contempt not committed in the immediate view and presence of the court, the superior court has jurisdiction to proceed when an affidavit stating the facts constituting the alleged contempt has been filed, and it appears that the facts charged do, in law, constitute a contempt. (Code Civ. Proc., sec. 1211.) In this case an affidavit was filed, the subsequent proceedings were regular, and the sole question presented is whether or not the facts stated in the affidavit constitute in law a contempt of the court.

It is alleged that an action entitled “Union Collection Company v. Commercial Fire Dispatch Company,” for the recovery of the sum of five thousand dollars, was pending in the said superior court of the city and county of San Francisco; that the plaintiff therein made the necessary affidavit and gave due notice in said action that on a certain day it…

I dissent. It would seem to be unnecessary to here consider the fact that the superior court made an order requiring the petitioner to obey the notary’s subpcena, as it is practically admitted by the majority opinion that the statute furnished no authority for the making of such an order, and that the making of such an order would not add to the legal obligation of petitioner to obey the subpoena. The majority opinion is based entirely upon the theory that under subdivision 9 of section 1209 of the Code of Civil Procedure, providing that “The following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court. . . . 9. Any other unlawful interference with the process or proceedings of a court,” the refusal of a person to obey a subpoena issued by a notary public, before whom his deposition was to have been taken upon notice, is a contempt of the authority of the court in which the action or proceeding is pending, and that such court has power to punish such person therefor.

It is admitted that this conclusion is directly the reverse of that reached by this court in Bank, in the case of Lezinsky v. Superior Court, 72…