Ex Parte Dickerson

• Decision Date: 05 December 1891
• Citation: 17 S.W. 1076
• Parties: <I>Ex parte</I> DICKERSON.
• Court: Texas Court of Appeals

17 S.W. 1076

Ex parte DICKERSON.

Court of Appeals of Texas.

December 5, 1891.

Appeal from Guadalupe county court; JAMES GREENWOOD, Judge.

Application by Levi Dickerson for writ of habeas corpus. The relator appeals from a dismissal of the writ. Affirmed.

Emil Mosheim and Ireland, Burgess & Dibrell, for appellant. Richard H. Harrison, Asst. Atty. Gen., for the State.

DAVIDSON, J.

The relator was convicted of a misdemeanor, and fined $100, and given a term of six months in the county jail. The only irregularity complained of in the judgment was its omission to order the issuance of execution for the fine and cost. Capias pro fine issued upon this judgment, and the relator was arrested, and placed in jail. He resorted to a writ of habeas corpus for his discharge. Upon the hearing of the writ the county attorney moved to dismiss the same, which motion was sustained, and relator was remanded to custody. The point relied on by the relator for his discharge is the want of finality in the judgment, in omitting to order execution to issue, as provided by article 805 of the Code of Criminal Procedure. Will this omission render the judgment void, and authorize a discharge of the relator? The judgment of inferior courts can only be attacked by writ of habeas corpus for such illegalities as render them void. Ex parte Gibson, 31 Cal. 619. Erroneous judgment of inferior courts having jurisdiction of the subject-matter and of the person cannot be successfully attacked upon habeas corpus, unless they are so far erroneous as to be absolutely void. 9 Amer. & Eng. Enc. Law, p. 222, and note 2. "The judgment of a court of competent jurisdiction cannot be impeached on a collateral attack by habeas corpus for errors or irregularities not extending so far as to affect the question of power or jurisdiction in the court to act in the case. On this writ nothing will be investigated except jurisdictional defects. Although, by prosecuting his appeal, writs of error or certiorari, the party may have errors and irregularities reviewed, and the result of his review entitle him to an immediate discharge, it is no ground for his release on habeas corpus." Id. p. 227, and note 2, for numerous decisions collated; Ex parte Scwartz, 2 Tex. App. 74; Ex parte McGill, 6 Tex. App. 498; Ex parte Boland, 11 Tex. App. 159. In McGill's Case this court said: "Instead of rendering judgment committing defendant to the custody of the sheriff until the fine and costs were paid, and awarding execution as provided by articles 3311, 3313, Pasch. Dig., the judgment ordered a capias pro fine to issue, and upon this capias the defendant was arrested, and, as he claims, illegally arrested, and restrained of his liberty. In other words, he seeks by means of the writ of habeas corpus to have reviewed and corrected a mere irregularity in a judgment rendered against him. This he cannot do." Ex parte McGill, 6 Tex. App. 500, 501. The failure to order the issuance of execution was but an irregularity, and cannot and does not vitiate the judgment, nor impair its force as to finality under the statute. "An irregularity is a disregard of some prescribed rule or mode of proceeding, and consists either in omitting to do some thing necessary to due and orderly prosecution of the cause, or in...