Ex Parte John R. Thompson.

• Decision Date: 30 September 1879
• Citation: 93 Ill. 89,1879 WL 8583
• Parties: Ex parte JOHN R. THOMPSON.
• Court: Illinois Supreme Court

93 Ill. 89

1879 WL 8583 (Ill.)

Ex parte JOHN R. THOMPSON.

Supreme Court of Illinois.

September Term, 1879.

WRIT OF ERROR to the Circuit Court of Lee county; the Hon. JOHN V. EUSTACE, Judge, presiding.

Mr. WILLIAM BARGE, Mr. M. D. SWIFT, and Mr. J. C. SEYSTER, for the plaintiff in error.

Mr. JAS. K. EDSALL, Attorney General, and Mr. J. D. CAMPBELL, for the People.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

The city of Polo is incorporated and acting under the general law for the incorporation of cities in this State. The city had adopted an ordinance prohibiting the sale of liquor therein, and imposing a fine of not less than $20 nor more than $100 for every violation of its provisions.

A prosecution was instituted against plaintiff in error before the police magistrate for a violation of the ordinance, and judgment was rendered against him, and in favor of the city, for $200 fine, and $10 costs of suit, and that he be committed to the city calaboose until the fine and costs should be paid, unless sooner discharged by due course of law. An execution was issued, and returned unsatisfied. The judgment being unpaid, a mittimus was issued by the magistrate, under which the city marshal arrested him and delivered him to the keeper of the calaboose, who committed plaintiff in error and confined him therein.

Plaintiff in error applied for a writ of habeas corpus, which was granted, and a hearing had thereon by the circuit court of Lee county, at the October term, 1878, and the court refused to discharge him, but remanded him to the keeper of the calaboose. Plaintiff in error has sued out a writ of error and brings the record to this court and asks a reversal.

The question arises whether a writ of error lies to review a judgment on a writ of habeas corpus.

Section 68 of the Practice act provides that appeals from all circuit courts, and from the Superior Court of Cook county, may be taken to the Supreme Court from all final judgments, decrees and orders. It will be observed that an appeal is given by statute, but a writ of error is a common law right. It does not lie until there is a final judgment. Consequently it will not lie to reverse an interlocutory judgment, decree or order. Hedges v. Madison Co. 1 Gilm. 306. There must be such a judgment or decision as settles the rights of the parties in the subject matter of the suit, and which concludes them until it is reversed or set aside. Hayes v. Caldwell, 5 Gilm. 33. Hence, neither an appeal nor writ of error lies to reverse a judgment, decree or order unless it is final and conclusive on the parties.

Then, is a judgment on the hearing of a writ of habeas corpus, rendered by a judge in vacation or by the circuit court when in session, of that conclusive character? In the case of Hammond v. The People, 32 Ill. 446, it was held that it was not, and that error would not lie to reverse it.

In a case like the present, petitioner had the power to appeal from the judgment of the police magistrate to the circuit court and thence to the Appellate Court and have it reversed. But on habeas corpus we are unable to determine whether there is error or not in the judgment. That can only be done on appeal or error. We could not go behind the judgment of the police magistrate to determine whether it is correct. That can only be done on error. Hence we could not review the case on appeal or error from the decision of the circuit court on habeas corpus. If the judgment was void that question could be tried by habeas corpus or on error.

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