Stearns v. Superior Court

ROSS, J. This is an original proceeding in certiorari instituted by petitioner, Stearns, for the pur [61] pose of bringing here for review an order made hy tbe superior court of Yuma county in tbe course of tbe hearing in a contempt proceeding therein against petitioner. In the case of Maxey v. Stearns, pending in said court, there had been entered an injunction order by which petitioner, Stearns, had been enjoined from doing certain things and, in effect, commanded to do other things, concerning the care and division of certain crops of hay and cotton grown on Maxey’s land by Stearns under a contract of lease. The petitioner was by affidavit charged with disobeying the injunctive order of the court and was attached and brought before the court as in contempt. Upon the hearing in the contempt proceeding the court made certain findings and thereon entered the following order: “It is therefore hereby ordered that defendant, Edward H. Stearns, do and he is hereby required to account to plaintiff, James H. Maxey, for said plaintiff’s share of said crop so wrongfully, fraudulently, and collusively made way with and converted by said defendant in the sum of $660.15, said sum to be paid said James H. Maxey within forty days from the date hereof. “It is further ordered that the proceedings herein upon contempt be and they are hereby suspended until the further order of this court.” It is that portion of the order requiring petitioner to pay Maxey $660.15 within forty days that we are asked to review and annul as being in excess of the court’s jurisdiction. We do not construe the order so entered as a final judgment. We think by it the court intended to say, and in effect did say, to the petitioner: “My investigation convinces me that you are rightfully indebted to Maxey in the sum of $660.15, and I will give you forty days in which to settle this claim, and if at the end of that time you have not done so, I [62] will then take np and pass upon the contempt ' matter.” The so-called order amounts to nothing more than would a friendly verbal statement from the bench to the effect that the final order in the contempt proceeding is postponed for forty days to give the parties a chance to settle their differences out of court, with an implied warning to defendant to do the right thing and pay plaintiff what he justly owed him in order to avoid punishment in the contempt proceeding. It was not a judgment against petitioner for $660.15, or any sum. The petitioner could or could not pay as he thought best. Whether he paid the $660.15 within the forty days or not, still the contempt proceeding was pending and for disposition. In any event, the so-called order was not a final order capable of enforcement. The contempt proceeding is still pending and undetermined; and, as we understand the law, certiorari cannot be employed to secure anything but a review of a final judgment or a final order in a proceeding. It was therefore, to say the least, prematurely asked for in this case. “It does not lie to determine the correctness, in point of law, of rulings or decisions made by such court, tribunal, or board, upon pbjections made or questions arising in the course of the proceeding, or cause preliminary and prior to the final determination regarding the action which it is asked to take in the matter.” Holabird v. Railroad Commission, 171 Cal. 691, 154 Pac. 831; 11 C. J., p. 126, § 75. The application is denied, and the writ heretofore issued herein is discharged. CUNNINGHAM, C. J., and BAKER, J., concur.