Pacific Coast Law Journal.

VOL. 2.

AUGUST 31, 1878.

No. 1.

WITH this number we begin another volume. We have been so greatly encouraged by the almost entire support of the Bar throughout the State that we now have our JOURNAL on a paying basis, and are determined to add during this volume several new features so as to make the publication rank with the foremost in the Union. Arrangements have already been made for the publication in this volume of all the United States Supreme Court decisions applicable to the Pacific States; also, the important decisions of the State of Nevada.

Supreme Court of California.

JULY TERM.

[No. 6,045.]

[Filed August 17, 1878.]

EX PARTE WILLIAM SMITH.

PROBATE COURTS-CONTEMPT-SECTIONS 128 AND 1209 CODE CIVIL PROCEDURE CONSTRUED. The provisions of Sections 128 and 1209, defining contempts, and providing for their punishment, are applicable to the Probate Courts.

WRIT OF REVIEW-SUBJECTS OF-Issues of fact in proceedings in the Probate Court for the enforcement of its orders of final distribution are final, and alleged errors therein are not the subjects of review under this writ. The review extends only to the question whether the Probate Court regularly pursued its authority.

CIVIL ACTION-DEBT-SECTION 15, ARTICLE 1, OF THE CONSTITUTION CONSTRUED. -Proceedings for the settlement of an estate are not a civil action within the meaning of Section 15, Article 1, of the Constitution; nor is the amount of money ordered to be paid over to distributees a debt, and does not fall within the clause of the Constitution inhibiting imprisonment for debt.

POWERS OF PROBATE COURTS-MAY IMPRISON AN EXECUTOR FOR CONTEMPT FOR FAILURE TO OBEY AN ORDER OF DISTRIBUTION.-The Code does not provide for the issuing of an execution for the enforcement of an order of distribution. The executor holds the property in trust for the creditors and heirs, and as such their obedience to its orders may be compelled by proceedings for contempt as fully as may be done in a District Court. An executor is also an officer of the court in respect to those matters in which he acts only under the direction and subject to the approval of the court, and as such his obedience to the orders of the court may be enforced by attachment for contempt.

Questions of release or inability to comply with the order can not be considered under this writ.

Wm. Smith, the relator, was a co-executor of the last will of R. D. Taylor, deceased.

On 28th day of January, 1878, after a final account, the Probate Court made a decree ordering a balance due from said executors, of $3,546.65, to be distributed to the distributees. The said executors failed to pay said amount, and the Probate Court made an order that the said Smith be imprisoned for contempt of court in not paying over said money, and a warrant of commitment to issue to the Sheriff to arrest and imprison said Smith until he paid the amount aforesaid.

In his affidavit for a writ of certiorari, the relator states that the said funds were loaned to the firm of Smith & Mann by the testator in his life-time, and were invested in the business of that firm, of which he was a member; that said firm became insolvent, and that the said funds have never been in his possession, and that it is not in his power to comply with said order. He denies the power of the court to punish him for the alleged contempt, or to enforce the decree by process of contempt.

Lloyd & Newlands, for the relator.

Under Sections 1209 and 1219 the court has no power to enforce the payment of money by process of contempt. (In re Burgham, 32 Vermont, 335.) No person shall be imprisoned for debt in any civil action, except in cases of fraud. (Art. 1, Constitution of California.)

The proceedings for contempt in this matter is a civil action. (1 Bradford, N. Y. 491; 1 Cowper, 136; 47 Cal. 133.)

Burch & Griffith, for respondents.

Judgments and orders of the court made in contempt are final and conclusive. There must have been an excess of jurisdiction before the court can interfere. (7 Cal. 244; 8 Nev. 362; 19 Cal. 156; 14 Cal. 499; Sec. 128, Sub. 4, C. C. P.; and 1209, Sub. 5.)

PER CURIAM.

The provisions of Section 128 of the Code of Civil Procedure, respecting the incidental powers of courts, and of Section 1209 and following, defining contempts and providing for their punishment, are as applicable to the Probate as to the District Courts. Among the powers enumerated in Section 128, is the power of courts to compel obedience to their judgments, orders, and process. The fifth subdivision of Section 1209 declares that disobedience of any lawful judgment, order, or process of a court is a contempt of the authority of the court; and other sections of that article provide for the punishment of contempts.

The order which the petitioner disobeyed is the order of final distribution of the estate of R. D. Taylor, deceased, the petitioner being one of the executors of the last will and testament of said deceased, and this comes within the fifth subdivision of Section 1209, above cited.

It being admitted that the court had acquired jurisdiction of the proceedings instituted for the purpose of enforcing obedience to the order, its decision upon the issues of fact tendered in those proceedings is final, and alleged errors therein occurring are not the subjects of review under this writ. The review extends only to the question whether the Probate Court regularly pursued its authority. The court having determined that the petitioner was guilty of disobedience of the order of final distribution, the only question remaining for consideration is whether the court had authority to enforce obedience to the order of distribution by ordering the petitioner to be imprisoned for contempt until he should obey said order.

It is manifest that the proceedings for the settlement of

the estate of Taylor, deceased, are not a civil action within the meaning of Section 15, Article 1, of the Constitution; nor is the amount of the money which, by the order of distribution, the executors are required to pay over to the distributees, a debt due from the executors to the distributees; and therefore the case does not fall within the clause of that section of the Constitution inhibiting imprisonment for debt in a civil action. The Code does not provide for the issuing of an execution for the enforcement of an order of distribution; and it is apparent that in many cases such a remedy would be wholly inadequate. The executors hold the property of the estate in trust for the creditors and heirs and others interested in the estate, and as such trustees their obedience to the orders of the Probate Court may be compelled by proceedings for contempt, as fully as the same may be done by the District Court in the execution of a trust of which it has cognizance. A further and perhaps stronger argument in support of the proceedings in this cause may be deduced from the relation which the petitioner bears to the Probate Court. An executor, although holding the assets of the estate in trust, as above stated, is not merely a trustee, but is in one sense an officer of the court. The court makes and may revoke his appointment, and usually all his acts are performed or subject to the direction of the court, and have no validity until the court gives its approval. In respect to those matters in which he acts only under the direction and subject to the approval of the court, he may be regarded as an officer of the court; and no argument is needed to show that, as an officer, his obedience to the orders of the court may be enforced by attachment for contempt.

Questions in respect to the release of the executor from the obligation to comply with the order, or his inability to comply with it, can not be considered under this writ. Writ dismissed.

[No. 5,697.]

[Filed August 16, 1878.]

P. G. GELCICH, RESPONDENT,

VS.

MORIARTY ET AL., APPELLANTS.

MINING CLAIM-POSSESSION.-To support a decree based on actual possession the findings must show that the plaintiff has had possession of a definite part of the mining ground in controversy.

LOCATION-BOUNDARIES-WHAT THE ACT OF CONGRESS OF MAY 10, 1872, REQUIRES. The plaintiff placed a monument in the centre of the claim and put a notice thereon defining the extent and boundaries, to-wit: 750 feet in an easterly direction from said monument and notice, 750 feet in a westerly direction therefrom following the lode and vein, together with 300 feet on each side of said monument and parallel with the centre line of said location.

Held: that the plaintiff failed to distinctly mark the location on the ground so that the boundaries can be readily traced.

Appeal from the Sixteenth District Court, Inyo County. This action was brought to quiet title to a mining claim. The complaint alleges possession and ownership of the premises in controversy, the same being a mining claim, located by said plaintiff on the 29th day of November, 1874, by notice posted upon said claim and in the centre thereof, extending 750 feet easterly and 750 feet westerly along the lode and vein, and 300 feet on each side of the vein; and that the same was recorded.

The defendants deny the ownership and possession of plaintiff, and allege that on January 21, 1875, they discovered and made location on said lode, and that they erected in the centre thereof a monument of stone, and posted notice thereon, which was duly recorded.

The court below found "that the said plaintiff by and through his agent, duly authorized and employed by him, did on the 29th day of November, 1874, locate the claim, ground, and premises in controversy. That he placed a monument in the centre of said claim and put a notice thereon clearly defining the extent and boundaries of the same, to-wit: 750 feet in an easterly direction from said monument and notice, and 750 feet in a westerly direction therefrom following the lode and vein, together with 300 feet on each