Carruth v. Taylor
| Citation | 8 N.D. 166,77 N.W. 617 |
| Parties | CARRUTH v. TAYLOR, Sheriff. |
| Decision Date | 28 November 1898 |
| Court | United States State Supreme Court of North Dakota |
CARRUTH
v.
TAYLOR, Sheriff.
Supreme Court of North Dakota.
Nov. 28, 1898.
1. Chapter 20 of the Code of Criminal Procedure, and section 5626 of the Code of Civil Procedure, regulating appeals, considered and construed. Held, that the procedure under the habeas corpus act is not governed by that regulating the special proceedings enumerated in chapter 39 of the Code of Civil Procedure; and, consequently, it is held that a final order in a habeas corpus case is not an appealable order, as a final order affecting a substantial right made in a special proceeding.
2. Held, further, that, while it is competent for the legislature to regulate and reasonably restrict the privileges of habeas corpus, it cannot by statute wholly deprive this court, in the exercise of its original jurisdiction, of the right to issue the writ.
3. Held, further, when liberally construed, that section 8651, Rev. Codes, as amended by chapter 85 of the Session Laws of 1897, will permit a petitioner who has been remanded by the district court to apply to this court for the writ, and thereupon this court will be authorized to reinvestigate and redetermine the case.
4. Held, further, that inasmuch as the state is a necessary party to a habeas corpus proceeding, good practice requires that the state should be made a party, in entitling the papers in such proceeding.
Appeal from district court, Grand Forks county; Charles J. Fisk, Judge.
Petition of E. C. Carruth for a writ of habeas corpus directed to E. C. Taylor, sheriff. Judgment remanding petitioner, and he appeals. Dismissed.
Bartholomew, C. J., dissenting.
Burke Corbet, for appellant. Edward S. Allen, State's Atty. (R. N. Stevens, of counsel), for respondent.
WALLIN, J.
This record discloses the following facts: The petitioner, E. C. Carruth, was arrested in the county of Grand Forks upon a warrant charging him with the offense of criminal libel. Said arrest was made by one E. C. Taylor, who was the sheriff of Burleigh county, and who acted in making the arrest under and by virtue of said warrant, which warrant was issued by a justice of the peace of Burleigh county, and was regular upon its face. Subsequent to said arrest, and upon an application therefor made by the petitioner to the district court for Grand Forks county, the writ of habeas corpus issued out of said court, commanding said sheriff to make return to said writ, and bring the petitioner before said court, together with the cause of his detention. In obedience to the writ the petitioner was brought before said court, and the cause of his arrest was there inquired into and considered; and that court determined that the petitioner was not unlawfully restrained of his liberty, and entered an order remanding the petitioner to the custody of the sheriff. The petitioner has attempted to appeal to this court from said order, and, with that end in view, has served a notice of appeal upon the state's attorney for Grand Forks county, and upon the attorney for said sheriff, and has filed such notice with the clerk of the district court for Grand Forks county. The petitioner also filed an undertaking in the usual form for the costs and damages incident to such appeal, in the sum of $250. In addition to said undertaking for costs, the petitioner filed with the clerk of the district court an undertaking, in the nature of a stay or supersedeas, in the sum of $100, which undertaking was filed in conformity to an order of said court staying the performance of the remanding order. Pursuant to said notice
[77 N.W. 618]
of appeal and proceedings, the clerk of the district court has transmitted the entire record to this court. In the view we have taken of the case, it will be unnecessary to set out the grounds upon which the petitioner claims that he is entitled to be discharged from custody. Respondent's contention is that this court is without authority to review the adjudication of the district court which culminated in the remanding order. If the respondent's contention is sustained,-and we think it must be,-it follows that this court is without authority to determine any of the questions touching the merits appearing in the record.
The notice of appeal is entitled as follows: “E. C. Carruth, Petitioner, vs. E. C. Taylor, Defendant.” Assuming that an appeal will lie, this is an irregularity, inasmuch as the proper parties in habeas corpus are the state and the petitioner. But the notice was served upon the state's attorney of Grand Forks county, which officer, for the purposes of habeas corpus, represents the state in the court below. Rev. Codes, § 8669. As the petition is regular in other respects, it can be upheld as sufficient in substance; and this minor matter is adverted to only for the purpose of indicating the proper title of the habeas corpus proceeding, and also for the purpose of calling attention to the important consideration that the state, as such, in issuing this prerogative writ, is a party to the proceeding.
It is elementary that the right of appeal is a statutory right, and this rule is especially applicable in habeas corpus cases, as many states have held that the decisions in this class of cases are not reviewable under a general law allowing an appeal from all final judgments. See Howe v. State, 9 Mo. 403; Ex parte Jilz, 64 Mo. 205. In Michigan the rule is that in habeas corpus an order discharging the petitioner is not reviewable on writ of error. People v. Conant, 59 Mich. 565, 26 N. W. 768. The general rule is indicated by the language of the court in the case last cited. The court say, “We know of no statute or practice allowing the people the right to bring error for the purpose of obtaining a review of the proceedings in the circuit court when the prisoner has been discharged, in this class of cases.” In Iowa, where the right of appeal in this class of cases is expressly conferred by statute, it is held that an order discharging the petitioner is not appealable. In State v. Kirkpatrick, 54 Iowa, 373, 6 N. W. 588, the court say, “In a habeas corpus proceeding an order of discharge made by the court cannot be superseded pending an appeal.” It must be conceded, however, that in some states the right of appeal has been expressly granted by the legislature. This is true of the state of New York. In other states it has been held, as in Minnesota and South Dakota, that a final order in a habeas corpus proceeding is appealable under a statute which gives an appeal from a final order affecting a substantial right made in a special proceeding. See Rev. Codes, § 5626; Comp. Laws, § 5236; State v. Buckham, 29 Minn. 462, 13 N. W. 902;Winton v. Knott (S. D.) 63 N. W. 783;In re Hammill (S. D.) 69 N. W. 577. Under the Minnesota and South Dakota cases, construing a statute identical in its language with section 5626 of the Revised Codes, the appellant's counsel claims that the order of the district court in this case is an appealable order. The citations of counsel are squarely in point, and it must be conceded that they furnish a strong support for the appellant's contention. It would clearly be the duty of this court to rule in accordance with this authority, unless this court, after mature and conscientious deliberation, shall be convinced that to yield its assent to the rule would operate practically to subvert constitutional safeguards and the fundamental rights of the citizen. We do not think that the legislature of this state ever intended to give an appeal to either party in a habeas corpus case, nor do the cases last cited do more than to declare in arbitrary terms the contrary rule. The matter seems to have been taken for granted by the learned courts whose decisions are cited. In State v. Buckham the court say: “A proceeding in habeas corpus is a special proceeding, not only because it is not an ordinary civil action, but because it is so expressly classified in our statutes.” It is true that this proceeding is not a civil action, nor is it a criminal action; but the argument that the proceeding is classified as a special proceeding cannot be urged in this jurisdiction, because such is not the fact. The habeas corpus statute in this state is embodied in the Code of Criminal Procedure, and constitutes chapter 20 of that Code. Rev. Codes, §§ 8648, 8688. The first section of that Code is as follows: “This act shall be known as the Code of Criminal Procedure of the state of North Dakota.” Rev. Codes § 7740. The same classification was made in the Compiled Laws of the Territory of Dakota. Comp. Laws, § 7025. This court has, however, repeatedly ruled that the mere fact that a proceeding in court is neither a civil action nor a criminal action is not necessarily decisive of the question of whether it shall be classified as a special proceeding, and hence be governed by the law and the procedure of special proceedings proper. State v. Davis, 2 N. D. 461, 51 N. W. 942; Myrick v. McCabe, 5 N. D. 422, 67 N. W. 143;In re Eaton, 74 N. W. 870. In the case last cited this court said: “The Davis Case is a precedent which commits this court to the theory that a remedial proceeding in court, which is neither a civil nor a criminal action, need not necessarily be classed as a special proceeding for all purposes. We are still of the opinion that this theory, if maintained, will tend to promote the orderly administration of the law, and thereby promote the ends of justice.” Upon the authority of these cases, it becomes the duty of this court, therefore, to determine whether the habeas
[77 N.W. 619]
corpus act, consisting of 40 sections of the Code of Criminal Procedure, and embracing a full and comprehensive regulation of the writ in all of its known functions, is to be grouped with special proceedings proper. If it is, it follows, under the statute, that, except as otherwise provided in the act, the rules of procedure and practice which govern in civil actions must be applied to habeas...
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