Mackenzie v. Barrett
| Decision Date | 01 August 1905 |
| Docket Number | 1,173. |
| Citation | 141 F. 964 |
| Parties | MACKENZIE v. BARRETT, Sheriff. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Harris F. Williams, for appellant.
John M Duffy, for appellee.
The petition in the Circuit Court showed that Mackenzie, a resident of the State of Idaho, defendant to a suit by his wife in the Circuit Court of
Cook County, Illinois, for separate maintenance, was arrested on a certain writ of Ne Exeat issued out of said court in said suit, commanding that if the said Mackenzie should fail to give bail according to the provisions of the statute of Illinois, in the sum of ten thousand dollars, to appear before the said Circuit Court at a day therein named, and abide the orders of the court, he should be committed to the jail of Cook County; that at the time the petition was filed Mackenzie was detained and imprisoned in said jail; and that the writ of Ne Exeat was unlawful in that Mackenzie was within Cook County at that time for the sole purpose of answering and defending against certain indictments for alleged abandonment of his said wife secured by her testimony; wherefore a writ of habeas corpus was prayed.
The defendant's return to this writ was, that the cause of the detention was under and by virtue of a surrender on the Ne Exeat bond.
In the Circuit Court the petition was dismissed, and the petitioner remanded; whereupon the appeal was prosecuted.
The particular matter before the court is the motion of respondent to dismiss the appeal, on the ground that on the 14th of January, 1905, the date on which the petition in the court below was dismissed, Mackenzie filed with the respondent his bond, conditioned for his appearance as required by the Ne Exeat writ, which bond was approved and accepted.
GROSSCUP Circuit Judge, after stating the facts, .
Whether appellant, on the record made, is entitled to the writ of habeas corpus prayed for, is not a question now before the court. The question presented and argued at this time is Whatever may have been appellant's right to the writ, has his suit therefor abated by the fact of his giving bond, thereby being released from actual custody pending the appeal.
The cause of action embodied in a habeas corpus proceeding can only be said to have abated, by the giving of bail pending the appeal, in case a writ in the first instance would lie for actual detention only, and would not lie for what may be called constructive detention. But the Supreme Court has held, Taylor v. Taintor, 16 Wall....
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Strand v. Schmittroth
...841, 94 L.Ed. 1365, rehearing denied 339 U.S. 991, 70 S.Ct. 1022, 94 L.Ed. 1392 (bail). The latter opinion points out that Mackenzie v. Barrett, 7 Cir., 141 F. 964, certiorari denied Mackenzie v. Pease, 203 U.S. 588, 27 S.Ct. 776, 51 L.Ed. 330, holding contra and so relied upon in Grant v. ......
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Matysek v. United States
...sufficient custody to make him a "prisoner" entitled to the benefit of habeas corpus or its substitute, § 2255. That is Mackenzie v. Barrett, 141 F. 964 (7th Cir. 1905). It relates to habeas corpus proceedings alone. In determining whether "in custody" includes constructive as well as actua......
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Summerlin v. Sheriff, Huron County, Ohio
...Sarver, 307 F.Supp. 1099 (E.D.Ark.), aff'd 428 F.2d 804 (8th Cir. 1970); Burris v. Ryan, 397 F.2d 553 (7th Cir. 1968); Mackenzie v. Barrett, 141 F. 964 (7th Cir. 1905), cert. denied, MacKenzie v. Pease, 203 U.S. 588, 27 S.Ct. 776, 51 L. Ed. 330 (1906); Marden v. Purdy, 409 F.2d 784 (5th Cir......
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Moss v. State of Maryland
....... -------- Notes: 1 The one case to the contrary, MacKenzie v. Barrett, 7 Cir. 1905, 141 F. 964, was overruled sub silentio in United States ex rel. Walmer v. Tittemore, 7 Cir. 1932, 61 F.2d 909, 910. (Rowland ......