
    [Crim. No. 3605.
    In Bank.
    December 21, 1932.]
    In the Matter of the Application of KENNETH MCDONALD for a Writ of Habeas Corpus.
    
      Paul W. Schenck for Petitioner.
    Harvey & Johnston, A. H. Swallow, H. E. Bianchi and T. N. Harvey for Respondent.
   THE COURT.

This is a petition for a writ of habeas corpus. On December 21, 1925, El Dora Oil Company, having previously recovered a money judgment against Ronald McDonald, brought an action against Ronald McDonald and Jennie McDonald in the Superior Court of Kern County to have it decreed that certain real property standing in the name of Jennie McDonald was in fact the property of Ronald McDonald. The object of the suit was to levy execution on the property to enforce the judgment previously obtained. A Us pendens was recorded on said date. Prior to trial, El Dora Oil Company was adjudicated a bankrupt, and William H. Moore, Jr., was appointed trustee and substituted as plaintiff in the action. The court gave a decree in his favor on April 16, 1929, and the decree was affirmed on appeal and became final on or about May 21, 1932. The said decree declared that the property was owned by Ronald McDonald and that Jennie McDonald had no right, title or interest therein; and that “the said defendant Jennie McDonald, her successors and assigns, are hereby forever enjoined and restrained from asserting or claiming any right, title or interest in or to said real property.

Subsequently, on June 6, 1932, petitioner Kenneth McDonald commenced an action in the said superior court against Jennie McDonald and the trustee of El Dora Oil Company, to have it decreed that he had a prior lien on said property in the amount of $50,000. The complaint alleged that Jennie McDonald had borrowed $50,000 from Security Trust Company on August 26, 1925, and had given as security a deed of trust on the said property; that petitioner, in August, 1927, at her request, paid said indebtedness and took an assignment of the deed of trust from Security Trust Company, it being agreed by Jennie McDonald that petitioner should be substituted for the trust company and should have a first lien upon the property to secure his payment.

Thereafter, on August 9, 1932, A. H. Swallow, one of counsel for the trustee, filed an affidavit with the trial court setting forth these facts and seeking to have petitioner adjudged guilty of contempt, on the ground that the institution of his suit constituted a violation of the injunction contained in the judgment in the prior action. An order to show cause was issued, a demurrer thereto was overruled, and petitioner was adjudged in contempt and a fine of $50 was imposed, with the alternative penalty of one day’s imprisonment for each $2 in the event of failure to pay. Petitioner did not pay, and a commitment was issued, followed by his imprisonment. This writ of habeas corpus was granted to determine the legality of his detention.

It is settled that the affidavit which forms the basis of a contempt proceeding must state sufficient facts to constitute the offense. (Berger v. Superior Court, 175 Cal. 719 [167 Pac. 143, 15 A. L. R. 373].) The affidavit of Swallow is defective in this regard. It avers that Kenneth McDonald, at the time he brought his action, “had full and actual knowledge” of the judgment and all of its provisions. It does not state that he had knowledge of its appeal and final termination in favor of the trustee. Much more fundamental, however, is its failure to allege that Kenneth McDonald is a party included within the terms of the judgment, either as an individual or as a member of a class designated therein. Since he was a stranger to the former action, he can in no way be considered bound by the judgment unless he comes within the provision thereof referring to the “successors and assigns” of Jennie McDonald. But the affidavit does not allege, and the court in its judgment of contempt does not find, that Kenneth McDonald is the “successor” or “assign” of Jennie McDonald, or that he claims any interest in the property in such capacity. In short, the charge of contempt rests, so far as this record is concerned, upon his knowledge of the judgment. This is plainly insufficient. (Berger v. Superior Court, supra.)

In addition to the insufficiency of the affidavit, the conceded facts fail to show any basis for a judgment of contempt. The claim upon which petitioner sued arose in August, 1925, prior to the filing of the action by El Dora Oil Company. Prom the time the Us pendens was recorded (December 21, 1925) no one could acquire rights from Jennie McDonald in said property superior to those of the said company. But the interest represented by the note and deed of trust was acquired before that time. Hence the judgment that Ronald McDonald was sole owner of the property from and after December 21, 1925> in no way determines that Jennie McDonald was not the owner in August, 1925, when she made the deed of trust. Hence it is entirely possible that the deed of trust may be a prior lien. And petitioner is not suing as the successor to the interest of Jennie McDonald, nor as her assignee. She was indebted to the trust company. He paid her indebtedness and succeeded to the claim of the trust company against her. It is that claim upon which he is suing, and not any subsequent promise of Jennie McDonald.

No authorities are submitted by respondent, but we have examined the reported oral argument, and we are satisfied that the order adjudicating petitioner in contempt was invalid.

The writ is granted, and the petitioner is discharged from custody.  