Summary
In John Breuner Co. v. Bryant, 36 Cal.2d 877 [ 229 P.2d 356], a motion to dismiss the appeal was granted where the trial court had discharged the defendant after finding him not to be in contempt.
Summary of this case from Butler v. ButlerOpinion
Docket No. S.F. 18285.
March 30, 1951.
APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Edward P. Murphy, Judge. Appeal dismissed on motion.
Fabian D. Brown for Appellant.
Fred N. Howser and Edmund G. Brown, Attorneys General, Charles W. Johnson and William L. Shaw, Deputy Attorneys General, for Respondent.
Plaintiff obtained a judgment directing defendant to cancel certain charges and remove them from plaintiff's reserve account which was maintained by defendant under the Unemployment Insurance Act. (Stats. 1935, p. 1226.) After affirmance of the judgment on appeal ( John Breuner Co. v. Bryant, 35 Cal.2d 897 [ 218 P.2d 4]), plaintiff filed an affidavit seeking to have defendant punished for contempt for alleged failure to comply with the mandatory provisions of the judgment. The trial court discharged defendant, finding that he had complied with the judgment and was not guilty of contempt. Plaintiff then appealed, and defendant has moved to dismiss the appeal, claiming that the contempt judgment is not appealable. This contention must be sustained.
[1] It is well settled that orders and judgments made in cases of contempt are not appealable, and this rule has been held applicable both where the trial court imposed punishment for contempt and where the alleged contemner was discharged. (Code Civ. Proc., § 1222; Tripp v. Tripp, 190 Cal. 201, 202 [ 211 P. 225]; Gale v. Tuolumne County Water Co., 169 Cal. 46, 50-53 [ 145 P. 532]; Moon v. Moon, 62 Cal.App.2d 189, 191 [ 144 P.2d 599]; Thomas v. Thomas, 4 Cal.App.2d 317, 318 [ 40 P.2d 581]; Abbott v. Abbott, 24 Cal.App. 475, 477 [ 141 P. 939].) [2] An order or judgment in a contempt matter may, however, be reviewed by certiorari ( Wilson v. Superior Court, 31 Cal.2d 458, 459 [ 189 P.2d 266]; Gue v. Dennis, 28 Cal.2d 616 [ 170 P.2d 887]; Weber v. Superior Court, 26 Cal.2d 144, 148 [ 156 P.2d 923]; Phillips v. Superior Court, 22 Cal.2d 256, 257 [ 137 P.2d 838]; Taylor v. Superior Court, 20 Cal.2d 244, 246 [ 125 P.2d 1]), and, where appropriate, by habeas corpus ( In re De Silva, 33 Cal.2d 76, 79 [ 199 P.2d 6]; Kreling v. Superior Court, 18 Cal.2d 884, 887 [ 118 P.2d 470]).
The motion is granted, and the appeal is dismissed.
Shenk, J., Edmonds, J., Carter, J., Traynor, J., Schauer, J., and Spence J. concurred.