Ex parte Queirolo

Application for discharge on habeas corpus. By the decree of divorce between petitioner and her husband the -court awarded her the custody of the three minor children of the marriage; subsequently, the court modified its decree by awarding the custody of the children to the father. From the *636 decree as thus modified petitioner took an appeal to this court, which appeal is still pending. After the perfecting of said appeal hy the petitioner, the court below made an order directing her to make immediate delivery of the children to the father; and, upon her failure to comply adjudged her guilty of contempt, and committed her to the county jail, there to remain until she shall have complied with such order. Petitioner asks to be discharged, contending that the entire contempt proceeding and order therein is void for want of power in the court to proceed in the premises pending her appeal, and this contention must be upheld. That the order modifying the decree was one from which an appeal lies to this court is admitted, and that the appeal was properly perfected is not denied. Section 949 of the Code of Civil Procedure provides that in cases not provided for in certain other…