Barton v. Sanders

• Decision Date: 02 February 1888
• Citation: 16 P. 921,16 Or. 51
• Parties: BARTON v. SANDERS.
• Court: Oregon Supreme Court

16 P. 921

16 Or. 51

BARTON v. SANDERS.

Supreme Court of Oregon

February 2, 1888

Appeal from circuit court, Union county.

Barton was sued in the circuit court for debt, and was arrested under an order based on an affidavit alleging that he had fraudulently contracted such debt, and had also removed and disposed of his property, with intent to defraud his creditors. He then sued out a writ of habeas corpus returnable before the county judge, who discharged him, and the discharge was affirmed by the circuit court on appeal whereupon the creditor appeals.

R Eakin and Cox, Smith & Teal, for appellant.

T.H. Crawford and Ramsey & Bingham, for respondent.

LORD, C.J.

This is an appeal brought to reverse a judgment discharging the plaintiff from arrest in a habeas corpus proceeding. The facts are these: The Mercantile Company commenced an action in the circuit court against the plaintiff to recover a certain sum of money, and in said action procured a writ of arrest to be issued, and the plaintiff taken into custody by the defendant's intestate, who was then the sheriff of Union county. Shortly thereafter the plaintiff sued out a writ of habeas corpus before the county judge of said county upon which an order was made discharging him from arrest, and from this order the defendant appealed to the circuit court, where a judgment was rendered affirming the judgment of the county court. The defendant's intestate died, and she, being appointed his administratrix, was substituted in his stead, and prosecutes this appeal. The case rests mainly on the sufficiency of the affidavit for the writ of arrest, which alleges as the ground therefor, "that the defendant [plaintiff here] has been guilty of fraud in contracting the said debt, and that defendant has removed and disposed of his property with intent to defraud his creditors."

Our statute provides that no person shall be arrested in an action at law except, among other cases, in the following instances: (4) "When the defendant has been guilty of a fraud in contracting the debt," etc.; and (5) "when the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors." Hill's Code, § 108. It also provides how, "at any time after the commencement of the action, the plaintiff may entitle himself to a writ of arrest, etc., and that the affidavit required may be either positive, or upon information and belief," etc. Section 109, subsecs. 1, 2. And finally, for the protection of the defendant, it is also further provided that "a defendant arrested may, at any time before judgment, apply on motion to the court, or the judge thereof, in which the action is pending, upon notice to the plaintiff, to vacate the writ of arrest," (section 130:) and that "if the motion be made upon affidavits or other proofs on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits, or other proofs, in addition to those upon which the writ was issued. If, upon the hearing of such motion, it shall satisfactorily appear that there was not sufficient cause to allow the writ, the same shall be vacated," (section 131.) Upon habeas corpus, it is provided that "if it appear on the return that the prisoner is in custody by virtue of an order or civil process of any court legally constituted, or issued by an officer in course of judicial proceedings before him, authorized by law, such prisoner shall only be discharged in the following cases:" (3) "When the order or process is defective in some matter of substance required by law, rendering such process void;" (4) "when the order or process, though in proper form, has been issued in a case not allowed by law;" (5) "when the order or process is not authorized by any judgment or decree of any court, nor by any provision of law." Hill's Code, § 622. These different provisions of our Code have been grouped for the purpose of showing some of the grounds for which an arrest is allowed, the mode to be pursued in obtaining the writ, and, in case of any defect, how it may be vacated, and the prisoner discharged, by a proceeding in the court in which the action is pending; and also to show some of the grounds which will authorize a court to discharge a prisoner in custody, as an unlawful restraint of his liberty. The contention of counsel for the plaintiff is that the proceeding for arrest was void on its face, and therefore authorized the court to inquire, and to discharge him, as unlawfully restrained of his liberty. This contention is based on the idea that the affidavit constitutes a part of the process, and, as it did not set forth the probative facts constituting the alleged fraud, it was fatally defective on its face.

The question, then, is whether the process has the sanction and authority of law; for it will be admitted, if there was no authority to arrest the defendant, he should be discharged. When the Code declares that the prisoner in a habeas corpus proceeding shall be discharged in certain cases, when in custody under civil process, we shall give the prisoner the benefit of the equity of the statute by assuming that he shall be discharged in such cases. That is to say, when it shall appear on the return of the writ that the order or process was defective in some matter of substance required by law, rendering such process void; or that the process, though in proper form, had been issued in a case not allowed by law; or that the process is not authorized by any judgment or decree of any court, nor by any provision of law. Subsections 3, 4, 6, § 622, supra. It is an elementary principle that, where a court acquires jurisdiction over the subject-matter and the person, it becomes its right and duty to determine every question which may arise in the cause without interference from any other tribunal. Upon the facts as disclosed by this record, it cannot be disputed but that the court had full and complete jurisdiction, under the statute, of the subject-matter of the proceeding, and of the person of the defendant, and was competent to correct any abuse of its process, or discharge the prisoner, if it should satisfactorily appear there was no cause for the arrest. The cause of action, the affidavit for a writ of arrests and the grounds thereof, the issuing of the writ, etc., were all matters,...