Cook v. Wyatt

• Decision Date: 06 May 1899
• Docket Number: 11204
• Citation: 57 P. 130,60 Kan. 535
• Parties: PORTER S. COOK v. DANIEL F. WYATT
• Court: Kansas Supreme Court

57 P. 130

60 Kan. 535

PORTER S. COOK v. DANIEL F. WYATT

No. 11204

Supreme Court of Kansas

May 6, 1899

Decided January, 1899.

Appeal from Shawnee district court; Z. T. HAZEN, judge.

Motion to dismiss sustained.

Garver & Larimer, for appellant.

W. E Fagan, for appellee.

OPINION

JOHNSTON, J.:

This litigation results from an attempt to take the deposition of Daniel F. Wyatt for use in an injunction proceeding pending in the district court of Shawnee county, wherein the state of Kansas is plaintiff and L. R. Hoffman is defendant. Wyatt refused to testify, on the ground that he was a resident of Shawnee county and intended to remain there; that he was in good health, and knew of no reason or cause to prevent him from attending the trial of the cause; and further, that his fees, which he had demanded, had not been paid. On his refusal, the justice of the peace before whom the depositions were being taken found him guilty of contempt, and the judgment was that Wyatt be imprisoned until he would submit to testify and give his deposition. At once he prosecuted a proceeding in habeas corpus in the district court, alleging that the imprisonment was illegal that the deposition was not taken in good faith, with the intention of using the same; that he was a resident of the county, and had no intention of leaving it or of evading the process of the court; that he expected to be present at the next term of the court; and further, that the witness fees, which he had demanded, were not paid. Considerable testimony was produced on the hearing, upon which the district court decided that the petitioner was entitled to his discharge, for the reason that, being a resident of the county, and intending not to depart therefrom, and not being sick or infirm at the time the deposition was to be taken, the plaintiff in the injunction suit had no right to take his deposition. After the discharge, the sheriff, who had been holding the petitioner, undertook to appeal from the decision. The petitioner, among other objections, challenges the right of the sheriff to prosecute the appeal or to institute a proceeding in error.

It is a serious question whether the decision of the district court discharging the petitioner is reviewable at the instance of any one. Many authorities hold that in the absence of statutory provisions the decision in a habeas corpus case is not so far final and conclusive in its character as to support a review or give an appeal. They hold that the doctrine of res judicata has no application to such cases, and that a party who has been refused a discharge on one writ may pursue the remedy by applying for other writs before other courts until he has exhausted the entire judiciary power of the state. (9 Encycl. Pl. & Pr. 1070-1072.)

But assuming, without deciding, that a review may be had in some cases, and by a party having an appealable interest, it seems clear that the sheriff has no such interest, nor any right to institute a proceeding in error in this case. The public is interested in the vindication of the law and the punishment of offenders, but the sheriff is not charged with the duty of taking appeals or instituting proceedings in error on behalf of ...