Bissing v. Turkington

Citation113 Conn. 737,157 A. 226
CourtSupreme Court of Connecticut
Decision Date17 November 1931
PartiesBISSING v. TURKINGTON, Sheriff.

Appeal from Superior Court, Litchfield County; Arthur F. Ells Judge.

Application by Harry Bissing for a writ of habeas corpus to be directed to Frank H. Turkington, Sheriff of Litchfield County. A plea in abatement to the writ was filed, and a demurrer to the plea sustained. A demurrer to the answer of the plaintiff to the return of the respondent was overruled, and judgment rendered ordering the release of the plaintiff from the custody of the respondent, from which the respondent appealed.

No error.

Thomas J. Wall, of Torrington, for appellant.

Samuel A. Herman and Lester W. Schaefer, both of Winsted, and J Clinton Roraback, of Canaan, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

BANKS J.

The application of the plaintiff alleges that he is being confined by the defendant without law or right in the county jail in Litchfield. The respondent's return justifies the detention of the plaintiff under an execution and mittimus issued by the Superior Court commanding him as keeper of the county jail to safely keep the plaintiff until the latter has paid the amount of a judgment rendered against him in that court. In his answer to the return the plaintiff alleged that on March 23, 1931, he was adjudged a bankrupt in the United States District Court for the District of Connecticut, to which the respondent demurred on the ground that such adjudication did not render the plaintiff's detention illegal.

A preliminary question is raised by the respondent's plea in abatement to the writ on the ground that no bond or recognizance for costs was entered into before the writ was issued, a demurrer to which, on the ground that costs are not taxable and cannot be recovered in habeas corpus proceedings, was sustained. Our statute (Gen. St. § 5619) requiring a recognizance for costs before process is signed must be construed to apply only to process in actions in which costs are taxable, since there would be no reason for securing the payment of costs in an action in which costs could not in any event be recovered. State ex rel. Gilbert Eliott & Co. v. Lake Torpedo Boat Co., 90 Conn. 638, 643, 98 A. 580, L.R.A. 1916F. 1033. Costs are a matter of statutory regulation, and are not taxable unless given by statute. Studwell v. Cooke, 38 Conn. 549; State v. Anderson, 82 Conn. 392, 73 A. 751; State ex rel. Gilbert Eliott & Co. v. Lake Torpedo Boat Co., supra. Our statute (Gen. St. § 2271) provides generally as to what costs shall be taxed in civil actions. That it was not the intention to make the taxation of costs obligatory in all cases is apparent from the long-established principle that costs in equity actions are in the discretion of the court. We have also held that this statute does not authorize the taxation of costs against the state upon an appeal in a criminal case although the statute gave the accused a right of appeal " in the same manner and with the same effect as in civil actions." State v. Anderson, supra. In that case it was held, upon familiar principles, that no costs could be taxed against the state. Neither is there any sound reason why they should be taxed against a public official holding a person in custody under lawful process; and there is no provision for their taxation against the parties in interest. See Ex parte Nelson, 253 Mo. 627, 162 S.W. 167. If they are not taxable against the respondent, they are not taxable in his favor against the applicant. The writ of habeas corpus is a prerogative common-law writ providing a special and extraordinary legal remedy. Our statute (Gen. St. § 5893) which provides for the issuance of the writ by the court contains no provision for the taxation or recovery of costs. In this it differs from the statutes regulating the issue of the other prerogative writs of quo warranto, prohibition, and mandamus. In State ex rel. Gilbert Eliott & Co. v. Lake Torpedo Boat Co., supra, we held that, where a writ of mandamus was sought in aid of a private right, as distinguished from a writ to compel the performance by a public officer of a public duty, it should not issue until a recognizance for costs had been taken, since the statute allows costs to be taxed and a judgment for costs to be rendered in such proceeding. In the absence of such a provision in the habeas corpus statute, there would seem to be no justification for the taxation of costs in such proceeding, and therefore no need for a recognizance for costs. In construing a somewhat similar statute, the Supreme Court of Vermont has held that proceedings in habeas corpus might properly be held to be outside the legislative intent because of the nature of the writ and in view of the fact that, in that state as with us, special statutory provisions regarding costs are made in the case of other prerogative writs. In re Jacobs, 87 Vt. 454, 89 A. 634. The form of the writ appearing in the Practice Book (p. 543) does not contain any recognizance for costs, and, so far as we are aware, it has never been the practice of the courts or the judges to require a bond or recognizance before issuing the writ, nor have the judgments in such proceedings provided for the recovery of costs. The demurrer to the plea in abatement was rightly sustained.

The record discloses that a judgment in the sum of $1,087.65 was rendered against the plaintiff in the superior court on December 20, 1930, that a body execution upon the judgment was issued on March 18, 1931, that the plaintiff was duly adjudged a bankrupt on March 23, 1931, and that on March 27, 1931, he was committed to jail under the body execution, and on the same day procured the issuance of the habeas corpus writ. Section 9a of the Bankruptcy Act (11 USCA § 27 (a) (2) provides as follows: " A bankrupt shall be exempt from arrest upon civil process except in the following cases: *** (2) when issued from a State court having jurisdiction, and served within such State, upon a debt or claim from which his discharge in bankruptcy would not be a release."

The respondent contends that the adjudication in bankruptcy does not operate to exempt the bankrupt from arrest on civil process for a dischargeable debt under section 9a of the act but that his sole remedy is to apply for a stay of the suit in the superior court until the question of...

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14 cases
  • Vincenzo v. Warden
    • United States
    • Connecticut Court of Appeals
    • November 12, 1991
    ...704, 705, 224 A.2d 544 (1966) (per curiam); Wojculewicz v. Cummings, 143 Conn. 624, 627, 124 A.2d 886 (1956); Bissing v. Turkington, 113 Conn. 737, 740, 157 A. 226 (1931). The deprivation of legal rights is essential before the writ may be issued. McPheters v. Pollard, 146 Conn. 509, 510, 1......
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    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • September 26, 1935
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    ... ... of decisions that a judgment for injuries founded on ... negligence is dischargeable. 6 Am. Jur. § 506; [93 Utah ... 212] Bissing v. Turkington , 113 Conn. 737, ... 157 A. 226, 81 A. L. R. 146, 19 A. B. R. (N. S.) 251; ... Tinker v. Colwell , 193 U.S. 473, 24 S.Ct ... ...
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