Section 157 of the Code of Civil Procedure provides that "a prisoner committed to jail, upon process, for contempt, or committed for misconduct in a case prescribed by law, must be actually confined and detained within the jail until he is discharged by due course of law, or is removed to another jail, or place of confinement, in a case prescribed by law;" and section 111 provides that, "no prisoner shall be imprisoned within the prison walls of any jail for a longer period than three months under an execution or any other mandate against the person, to enforce the recovery of a sum of money less than five hundred dollars in amount, or under a commitment upon a fine for contempt of court in the non-payment of alimony, or counsel fees in a divorce case, where the amount so to be paid is less than the sum of five hundred dollars; and where the amount in either of said cases is five hundred dollars or over, such imprisonment shall not continue for a longer period than six months." The amount of alimony and counsel fees which the relator was ordered to pay was upwards of $500, and, therefore, this was a case where he could be confined in a jail under the warrants or mandates issued against him for a period of six months, unless sooner discharged in some way authorized by law. The claim of the relator is that at the time he obtained the writ of habeascorpus for his release he had been imprisoned for more than six months, within the meaning of section 111. But, upon the return of the writ it appeared that he had actually been confined within the walls of a jail for a less period than one month. It is provided in section 2037 of the Code that, pending the proceedings, and before a final order is made upon the return of the writ of habeas corpus, "the court, or judge before which or whom the prisoner is brought, may *Page 587 either commit him to the custody of the sheriff of the county wherein the proceedings are pending, or place him in such care or custody as his age and other circumstances require." It appears that up to within a month of the time when the writ of habeascorpus in this proceeding was issued, the relator had, by orders of the court, been committed to the custody of his counsel, and that he had actually been at large and not confined within the walls of a jail or prison. He was not, therefore, entitled to his discharge as a person who had been imprisoned within the walls of any jail for a period of six months. The imprisonment meant in the section is an actual imprisonment within the walls of a jail, and not the technical restraint under which a person may be supposed to be, who is committed to the custody of his counsel and permitted to go at large.
But it is claimed, on the part of the relator, that the facts as to his imprisonment did not properly appear before the judge. The return of the sheriff does not affirmatively show that the relator had been imprisoned within the walls of a jail for the period of six months, and if the hearing before the judge had been confined to the facts appearing in the return, the relator would not have been entitled to his discharge. But section 2038 required that notice of the hearing upon the return to the writ should be given to the person interested in continuing the imprisonment of the relator, and that was Lizzie H. Clark, the plaintiff in the divorce suit. She was notified and appeared before the judge, and made what is called a return to the writ, verified by her affidavit, which states the facts showing that the relator had not actually been imprisoned within the walls of a jail. There was no objection made to the consideration of that verified return by the judge, and the record shows that the relator demurred to it, thus admitting the facts stated therein to be true. If objection had been made to that return, then a further return by the sheriff might have been made showing the facts, or the judge, under section 2031, could have taken oral evidence and thus ascertained the truth. We think, therefore, that the relator *Page 588 must be held to have admitted the facts stated in the affidavit of Mrs. Clark, and that upon those facts he was not then entitled to be discharged.
The order should, therefore, be affirmed, with costs.
All concur.
Order affirmed.