Bass v. Hightower

• Decision Date: 11 June 1894
• Citation: 94 Ga. 602,21 S.E. 592
• Parties: BASS et al. v. HIGHTOWER.
• Court: Georgia Supreme Court

21 S.E. 592

94 Ga. 602

BASS et al.

v.HIGHTOWER.

Supreme Court of Georgia.

June 11, 1894.

Arrest in Civil Action—Discharge without Bail—Procedure—Habeas Corpus.

A defendant in an action of trover, requiring bail, cannot be discharged from legal imprisonment on the ground of his inability to produce the property sued for, or to give bond and security according to law, without pursuing the remedy pointed out in section 3420a of the Cede. He cannot obtain his discharge for this cause on petition for the writ of habeas corpus; and at the hearing, on the return of such writ, evidence to show the existence of such cause is inadmissible, notwithstanding the facts relied upon may be alleged in the petition for the writ, and notwithstanding the plaintiff in the action of trover may have voluntarily appeared on the hearing of the writ, and had himself made a party to the proceeding. The hearing could be conducted only in conformity to the law applicable to proceedings by habeas corpus, whether the judge who issued and heard the writ was the judge of the court in which the action of trover was pending, or some other judicial officer empowered to issue, and entertain jurisdiction over, writs of habeas corpus.

(Syllabus by the Court.)

Error from city court of De Kalb; H. C. Jones, Judge.

In a civil action by J. H. Bass, W. P. High-tower was arrested and confined, where, upon petition for a writ of habeas corpus for discharge without bail, defendant was discharged, and plaintiff and the sheriff bring error. Reversed.

The following is the official report:

The petition of Hightower to the judge of the city court of De Kalb county alleged "Petitioner is illegally restrained of his liberty by being confined in the common jail of said county by virtue of a bail-trover process, copy of which is attached. He has delivered to the sheriff of the county all the cattle that were in his possession and control, and claimed under such bail-trover process. He is unable to give security or produce the property, as required by law, for which he can show good cause; and the U. S. currency claimed under said process is not in his possession, power, or control, said money being expended for the cattle, as described in said bail-trover process, as per contract between the parties." He prayed for the writ of habeas corpus, directed to Austin, sheriff and jailer of the county. The writ was issued, and, the matter coming on to be heard, defendant moved to dismiss the petition and the writ on the following grounds: "The allegations in the petition do not, in law, entitle the petitioner to the writ. If such allegations are true, the court would not be authorized, in law, to discharge the relator from the custody of the sheriff. The allegations in the petition, taken together with the sheriff's return in the bail-trover suit, make an issue that could only be tried by a jury; and, if the plaintiff is entitled to his liberty, this is not his remedy, but it is under subsection a of section 3420 of the Code."¹ The sheriff's return in the bail-trover suit of Bass against Hightower was: "The defendant, having this day (December 30, 1893) been served with a copy of the petition, process, and bail affidavit in said case, was arrested by me, and on failure to enter into recognizance for the forthcoming of the property sued for, and being unable to [find] any of that property myself, except four head of cattle, or to seize or take possession thereof, pursuant to the requirements of law, I commit him to jail, to be kept in custody until the property sued for is produced, or until he shall enter into bond, with good securities, for the eventual condemnation money." The motion to dis-miss the petition and writ was overruled. Plaintiff in the bail-trover suit was then made a party defendant to this case, and the court proceeded with the hearing. Hightower offered evidence in support of the...