
    Ex parte Enrique Germán, Petitioner.
    No. 432.
    Argued December 18, 1944.
    Decided January 10, 1945.
    
      
      Diego O. Marrero for petitioner. R. A. Gómez, Prosecuting Attorney (Fiscal), for Tbe People.
   Mu. Chief Justice Travieso

delivered tbe opinion of tbe court.

In civil case No. 42639 of tbe District Court of San Juan, an action for maintenance and support brought by Carmen Landos against Enrique Germán, tbe plaintiff, on August 27, 1943, filed a motion praying that tbe defendant be punished as for contempt for bis failure to deposit in court tbe allowances pertaining to tbe months of June, July, and August, 1943, as directed by said court in its order of March 17tb of tbe same year. On September 10, 1943, a bearing was held, with tbe appearance of both parties, and on tbe 23rd of tbe same month, tbe district court rendered judgment finding tbe defendant guilty of contempt and sentencing him to 30 days in jail, tbe execution of the judgment to be suspended on condition that tbe defendant deposit tbe allowances due and unpaid corresponding to tbe months of June, July, and August, 1943, for which purpose be was granted 15 days, counted from tbe date of service of tbe notice of judgment upon him.

On November 2, 1943, tbe plaintiff again applied to said court and alleged that defendant bad disobeyed all tbe orders issued by the court and was owing tbe allowances pertaining to the months of July to October, 1943. After bearing the parties, tbe court rendered judgment against tbe defendant and sentenced him to 30 days in jail. Tbe operation of that judgment, which was entered on November 15, 1943, was to be suspended until tbe 30th of tbe same month, and it was provided that if before tbe latter date tbe defendant deposited tbe arrears of maintenance allowance, tbe judgment would become inoperative; otherwise a writ of commitment would bé issued.

Before any order of commitment was issued, tbe defendant appealed from both judgments to this court, and, be bav-ing failed to perfect his appeals, both of them were dismissed by ail order issued by us on November 14,1944. After both judgments had become final (firme) and the mandate transmitted to the trial court, on November 30, 1944, the clerk of said court issued under his signature a writ, the dispo-sitive part of which reads as follows:

“THEREFORE: You, the Marshal of this Court, Civil Section, are hereby commanded to arrest Enrique Germán and convey and deliver him to the Warden of the District Jail, to be detained there for the term of 60 days, or 30 days in each case, to which he was sentenced by this court for the offense of contempt; and to make return of this writ to this office after the same shall have been executed.”

On November 29, 1944, the petitioner was arrested and committed to the District Jail of San Juan. On December 1, 1944, we dismissed the petition for habeas corpus filed by the prisoner; but, upon the latter filing a motion for reconsideration in which he set forth additional reasons and grounds for his petition, we issued the writ and ordered the release of the petitioner upon the furnishing of a bail bond in the sum of $300.

At the hearing of the proceeding the respondent warden filed a written statement, setting forth that the petitioner was held in custody in the District Jail of San Juan by virtue of the above-mentioned writ of commitment issued by the Clerk of the District Court of San Juan.

Section 3 of the Contempt Act of 1902, as amended by Act No. 102 of May 12, 1937, in its pertinent part provides:

“. . . whenever a person is fined or committed to jail for a contempt of court ... an order or warrant for such fine or imprisonment must be signed by the judge or commissioner' delivering such sentence, setting forth the act or acts constituting such contempt, with the time and place of the commission thereof, and Ihe circumstances, and specifying the sentence of the court; otherwise such sentence will be wholly invalid and inoperative.”

Once the two judgments were affirmed on- November 14, 1944, and the mandate of this court was transmitted to the district court, tlie latter became reinvested with, jurisdiction to enforce the judgment in both cases of contempt. Section 369 of the Code of Criminal Procedure. It does not appear from the record that the trial judge had issued any order or writ for the execution of the sentence of imprisonment passed upon the petitioner. It was the clerk of the court who, officiously, and without legal authority, issued the writ by virtue of which the petitioner was committed to jail. We are not dealing, then, with a defective writ issued by the trial judge but with an unauthorized and void act performed by the clerk. See De Torres v. District Court, 58 P.R.R. 519.

Since it appears from the foregoing that the petitioner is held in custody by virtue of a writ which was not issued by the trial judge — a legal and indispensable requisite for the judgment of contempt to be operative — and that the writ whereby the petitioner is deprived of his liberty is void for lack of power on the part of the clerk to issue the same, it is proper for us, in accordance with the provisions of § 483 of the Code of Criminal Procedure, to order the discharge of the prisoner and the cancellation of the bail bond furnished by him; but, inasmuch as the statute does not fix any time limit for the issuance of a writ or order of commitment, the trial court can and should enforce its aforesaid judgments by issuing the proper writ or order in accordance with the provisions of the statute.  