Ex parte Cohen , 1856 Cal. LEXIS 137 ( 1856 )

Mr. Justice Terry delivered the opinion of the Court.

Mr. Chief Justice Murray concurred.

The return to the writ shows that the petitioner is held in custody under a warrant of commitment, issued out of the Fourth District Court, in the case of Adams v. Haskell and Woods, directing that said Cohen and Edward Jones be imprisoned until they comply with a certain order of Court, requiring them to deliver to H. M. Naglee, a receiver appointed by said Court, all the books, papers, money and property in their hands belonging to Adams & Co.

And also a certain order of arrest, made by John S. Hager, Judge of the Fourth District Court, in a certain suit pending in said Court, in "which H. M. Naglee is plaintiff and said Cohen is defendant.

In addition to the return of the officer, the petitioner produces as evidence on the hearing of his application, a record of the proceedings in the Court below on his application to be discharged from imprisonment. From this record, it appears that Cohen filed his affidavit in the Court below, setting out a compliance with said order as far as he was able. Certain interrogatories were propounded to him, under the order of the Court, from the answers to which, with the affidavits and statement of accused on file, the Court decreed, “ that said Cohen had not paid over to said receiver, according to the order of the Court, all the moneys received by him as ^ceiver in this action, but had retained a portion of said moneys for his disbursements and compensation; the Court ordered and decided that said Cohen could not be the judge of his own compensation and disbursements, but they must be submitted, and passed upon by the Court and allowed, to entitle him to take them; and in order to be discharged, he must first pay over all said moneys received by him as receiver-—have his accounts passed upon and allowed, and pay over the balance found in his hands.”

By the affidavit of Cohen, which is not contradicted, it appears that the disbursements charged, were made by him in the course of his receivership, and that the money claimed by him as compensation had been used about his own business, and that he had not so much money in his hands, and was, therefore, unable to comply with the order of the Court.

Under our statutes, the power of a Court to punish for a contempt is limited to a fine of five hundred dollars and imprisonment for five days, except when the contempt consists in the omission to perform an act which is yet in the power of a person to perform, in which ease he may be imprisoned till he have performed it. §§ 488 and 489 Prac. Act.

In this case, the Court does not find that it was in the power of Cohen to comply with the order; and his affidavit, which was not contradicted, shows that it was not.

This being the case, we are satisfied that the Court exceeded its jurisdiction in making an order, which, from the record alluded to, was equivalent to a sentence of imprisonment for life.

It is admitted that the order of arrest mentioned in the return, was made by the Judge on the 22d day of January, 1856, while the complaint in the action in which it is entitled, is not filed until two days afterwards.

In order to give the Court jurisdiction of the subject matter, so as to enable it to issue orders or process, it is necessary that the action should be commenced. Civil actions are commenced by filing a complaint with the clerk of the Court, and the issuance of a summons thereon. Pr. Act, § 22, The Practice Act provides that the defendant may he arrested in a certain class of eases. Until there is a suit instituted, there can be no defendant, and consequently no authority, under the statute, to issue an order of arrest. The order of arrest in this case seems to have been made by the Judge under a misapprehension of the fact, for the order recites that an action had been commenced and was pending between the parties. It appearing that no such action had been instituted at the time of issuing the order, it was void for want of jurisdiction. It is ordered that the prisoner be discharged.