Ex parte Evans.

• Decision Date: 20 June 1896
• Citation: 42 W.Va. 242
• Parties: Ex parte Evans.
• Court: West Virginia Supreme Court

42 W.Va. 242

Ex parte Evans.

Supreme Court of Appeals of West Virginia.

Submitted June 9, 1896

Decided June 20, 1896.

1. Appeal Writ of Error Habeas Corpus.

The remedy for mere irregularity in the process or mere error in the proceedings of courts of competent jurisdiction is by appeal or writ of error, not by habeas corpus; otherwise if the process or proceedings be void,

2. Imprisonment Hobeas Corpus.

Imprisonment under the process or order of a court of com- petent jurisdiction, however irregular or erroneous, not being void, is not illegal imprisonment, so as to warrant discharge on habeas corpus.

3. See points 2 and 3 in Ex parte Mooney, 26 W. Va. 36.

A. B. Fleming and U. ~N. Arnett for plaintiff in error, cited Code, c. 106, s. 30; 5 How. Prac. 125, 131-7; 49 Cal. 465; 26 Ohio St. 654, 667; 6 Rand. 188; 7 W. Va. 380; 38 W. Va. 701; 27 W. Va. 848; 10 W. Va. 136, 137; 21 W. Va. 214; 22 W. Va 652.

Geo. C. Sturgiss and H. M. Russell for defendant in error, cited Code, c. 106, ss, 1, 30, 33, 35, 36; 26 W. Va. 36, 41, 43; Hard, Hab. Corp.. (2nd Ed.) 328; 32 W. Va. 41, 43; 6 Munf. 462; 19 W. Va. 66, 67; 32 W. Va. 364; 100 U. S. 337, 371; 4 Cranch, 75; 25 W. Va. 122; 80 Va. 314; 104 U. S. 604; 30 W. Va. 554; 37 W. Va. 847.

Brannon, Judge:

This is a writ of error brought by Enoch J. Evans to reverse a judgment of the Circuit Court of Monongalia county, rendered upon a writ of habeas corpus directed to S. W. Hare, the sheriff and jailor of said county, seeking discharge from alleged illegal imprisonment, by which judgment Evans was refused a discharge, and was remanded to prison.

The Farmers' & Merchants' Bank brought a suit in equity in the circuit court of Monongalia against Evans and others, setting up that it had discounted a note for three thousand and two hundred dollars made by Evans, and it sought to recover said debt, and levied an attachment upon certain estate of Evans, and also sued out an order of arrest in said suit under which Evans was committed to jail, the bill charging that Evans fraudulently contracted the debt by certain false representations, and the affidavits for the attachment and order of arrest alleging fraud in several respects. Evans moved the circuit court to quash the order of arrest, and his motion was overruled, and he was remanded to jail, and then he obtained the writ of habeas corpus.

Evans, by counsel, contends, as grounds to sustain his writ of habeas corpus, that his imprisonment under said order of arrest is illegal First, because the note on which the chancery suit was brought had not become due when the suit was brought, and that no order of arrest could be issued in a suit for a demand not yet due; second, that the affidavit for the order of arrest is defective. Suppose we say that these positions, that no order of arrest could regularly issue in a suit for a demand not due, and that the affidavit is defective, are well taken, and that the circuit court erred in not quashing the order of arrest; the question at once arises, can such matter and such error be available on a writ of habeas corpus, or must the party resort to an appeal? A writ of habeas corpus is only to test the legality of imprisonment. If the imprisonment is under process of a court having jurisdiction of the case, mere defects or errors not going to the jurisdiction of the court do not render the imprisonment illegal, and discharge can not be had on habeas corpus. A writ of habeas corpus is not, in proper sense, an appellate proceeding. It can not correct mere errors or irregularities, like an appeal, writ of error, or certiorari. These appellate processes can reverse proceedings both because void and for mere erroneousness, but habeas corpus only because void. It is, in no proper sense, appellate process. Where the imprisonment is under process or order that is void, as distinguished from irregular or erroneous, the writ of habeas corpus holds it for naught, disregards or ignores it as not furnishing warrant for imprisonment; but it does not operate directly on the void process or judgment by annulling or reversing it, like an appeal, writ of certiorari, or writ of error, but, as a collateral procedure, simply releases from the prison by ignoring the alleged warrant for imprisonment. The books sometimes call it an "appellate process," but it is in this narrow sense which hardly justifies us in calling or treating it as "appellate" in any sense. In proceedings on habeas corpus especially, as in many other instances, it is important to remember the distinction which the law makes between process and judgments void and those only irregular or erroneous. Yoidness is one thing; irregularity or erroneousness another. But this distinction is often close, often dis- regarded. These principles are clearly stated in Ex parte Mooney, 26 W. Va. 36, and applied in Flack v. Fry, 32 W. Va. 364 (9 S. E. 240). The Virginia court has aptly put this rule in Ex parte Rollins, 80 Va. 314, in the syllabus: "The remedy for mere errors in proceedings of courts of competent jurisdiction is by writ of error or appeal, not by writ of habeas corpus."

Apply these principles...