Ex Parte Evans.

• Decision Date: 20 June 1896
• Citation: 24 S.E. 888,42 W.Va. 242
• Parties: Ex parte EVANS.
• Court: West Virginia Supreme Court

24 S.E. 888

42 W.Va. 242

Ex parte EVANS.

Supreme Court of Appeals of West Virginia.

June 20, 1896.

Habeas Corpus—When Allowed—Illegal Imprisonment.

1. 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 under the process or order of a court of competent 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.

(Syllabus by the Court.)

Error to circuit court, Monongalia county.

Application by Enoch J. Evans for a writ of habeas corpus. Application refused, and petitioner brings error. Affirmed.

A. B. Fleming and U. N. Arnett, for petitioner.

Geo. C. Sturgiss and H. M. Russell, for respondent.

BRANNON, J. 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 sun in equity in the circuit court of Monongalia against Evans and others, setting up that it had discounted a note for $3,200 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 bad 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), the imprisonment is not illegal, and discharge cannot be had on habeas corpus. A writ of habeas corpus is not, in proper sense, an appellate proceeding. It cannot 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 er-roneousness, 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...