Pueblo Trading Co. v. El Camino Irr. Dist.

(dissenting).

The petition for rehearing should be granted. If the language of the order to show cause “why such further order in the premises should not be made as will insure the levy and collection of assessments for the satisfaction of the judgment herein” does not provide for an ancillary proceeding for execution of appellant’s judgment, no language can provide for such execution. If this be the law, the appellant’s judgment is unenforceable by execution and is destroyed.

(concurring and dissenting).

I concur in the affirmance of the order of the district court which reads “The contempt proceeding is dismissed,” but dissent from the court going afield from the single issue presented by the appeal from that order and erroneously denying the right to the appellant bondholder to have considered its plea for execution on the judgment of the court below in the ancillary mandamus proceeding it brought.

The punishment for a past contempt is an entirely distinct proceeding from the mandamus proceeding sought requiring future action.

This mandamus proceeding was prayed for in that portion of the motion for an order to show cause which reads, “that such further order be made in the premises as will insure provision for payment of said judgment by levy and collection of taxes and, assessments on the lands of said district as provided by law.” The district court recognized that this ancillary relief so was sought and in its order to show cause ordered cause be shown “why such further order in the premises should not be made as will insure the levy and collection of assessments for the satisfaction of the judgment herein.”

The district and the supervisors…

In 1945 appellant obtained a default judgment against El Camino Irrigation District for money owing on outstanding bonds of the district. The judgment further directed that the assessments needful to pay it be made by the district’s board, and that in the event the latter failed to act the Board of Supervisors of Tehama County make provision for payment by the levy of assessments in the manner prescribed by Division 11 of the Water Code of the State of California. In the respects last mentioned the judgment went beyond the prayer of the complaint. The county supervisors having taken no action, appellant brought contempt proceedings against them and the county assessor, appellees here. Its sworn petition prayed “that an order be issued citing the supervisors and the aforesaid named officers of the County of Tehama to show cause before this court why they should not he punished for contempt of court for failure to carry out the orders of this court; and that such further order be made in the premises as will insure provision for payment of said judgment by levy and collection of taxes and assessments on the lands of said district as provided by law.”

The county officials demurred…

Upon Petition for Rehearing.

Rehearing denied.