In Re Gottschalk

PREWETT, P. J., pro tem. This is an application for a writ of habeas corpus. It appears from the statement of the facts accompanying the petition that one J. H. Anderson labored as a dredgerman for the Dutton Dredging Company from 12 o’clock noon on April 30th until about 7 A. M. on the seventh day of May. His working hours were so disposed that he worked twenty-four hours in each three days, not working, however, the same number of hours each day. Up to 12 o’clock noon on May 6th he had worked forty-eight hours. His only work during the seventh twenty-four hours was from midnight until 7 A. M. on May 7th, when he voluntarily quit work. This lacks one hour of being seven full days. The company paid him for seven days and one hour in conformity with his claim that he worked on the last day until 9 A. M. The check which he received was for $26.30, which overpaid him in the sum of about twenty cents. He claimed that he should have received about three dollars more, but his own figures do not justify this claim. At the time that he quit work the foreman made out and delivered to him a time-check for $26.30, which check he accepted without making any claim that the amount was too small. With reference to this time-check he testified as follows: “I told him [the foreman] that I would call at the *262 office of the company in San Francisco and collect the money. Afterward I changed by mind and went to Sacramento instead. I did not tell the foreman that I had gone to Sacramento until several days later. The day after going to Sacramento I sent my time-check to the Dredgermen's Union in San Francisco and left it there for collection. I received the check for $26.30 about the same day that I swore to the complaint.” The time-cheek was not presented to the company until about May 21st, and it was paid to the Dredgermen’s Union ón May 22d. The money did not reach the complainant until the following day. The defendant himself resides in San Francisco and he did not have any dealings directly with Anderson. The latter did not at any time notify the company that he wanted any new provision to be made about the payment of the time-check. The justice of the peace found the defendant guilty and pronounced judgment. [1] The judgment, as originally entered, gave the defendant the option of avoiding the imprisonment by the payment of the fine. Later, however, the justice entered an order purporting to withdraw the option and directing the imprisonment of the defendant. This order was made after the defendant was taken into custody. It is true that the order directed that the fine be paid “forthwith,” but all fines are payable forthwith, and the use of that word added nothing to the legal effect of the judgment. It is held in Ex parte Sullivan, 3 Cal. App. 193, [84 Pac. 781], that a justice of the peace has no power, after the commencement of the execution of a judgment, to vary its terms adversely to the defendant. The petitioner is discharged.