Ex parte Merrill

Decision Date27 October 1917
Citation245 F. 778
PartiesEx parte MERRILL.
CourtU.S. District Court — Eastern District of Michigan

G. W Davis and Frank A. Rockwith, both of Saginaw, Mich., for petitioner.

Weadock & Weadock, of Saginaw, Mich., for respondent.

TUTTLE District Judge.

This is a petition for writ of habeas corpus, sought by the petitioner to secure his release from imprisonment in the county jail of Saginaw county, Mich., where he is detained under a warrant issued by the probate judge of such county during the course of certain proceedings pending in said court.

On February 5, 1915, an order was made by said probate court in the matter of the estate of William Merrill, deceased directing petitioner, as one of the executors of the will of said deceased, to forthwith pay to one Eric W. Wessborg executor of the will of Alice E.

Merrill Wessborg, deceased (daughter of the aforementioned William Merrill), all dividends collected by petitioner on certain shares of corporate stock bequeathed by said William Merrill to his said daughter, amounting on January 1, 1915, to $3,652, together with all dividends on said stock accruing between the last-mentioned date and the date of said order. From such order petitioner appealed to the circuit court for Saginaw county, which court affirmed the order of the probate court. An appeal was thereupon taken from such circuit court to the Supreme Court, the court of last resort in Michigan, which affirmed the decision and judgment of the circuit court. Upon the filing of the remittitur in the probate court, said Wessborg, on June 12, 1917, made a written demand upon petitioner for the payment of the dividends already mentioned, with notice that unless such money were paid on or before June 14, 1917, at noon, such order of the probate court would be enforced according to the statute in such case made and provided. The statute referred to is section 13765 of the Michigan Compiled Laws of 1915 which provides that such judge of probate shall have power, among other things:

'To issue warrants directed to any sheriff, constable, or other proper officer in this state, requiring him to apprehend and imprison any person who shall refuse or neglect to perform any order, sentence or decree of the probate court, requiring such officer to apprehend and imprison such person in the common jail of the county, until he shall perform such orders, sentence or decree, or be delivered by due course of law.'

No attention having been paid to this demand, on June 15, 1917, upon the filing in said probate court of a verified petition of said Wessborg, showing the service of such demand and the failure to comply therewith, a warrant was issued by the judge of said probate court, addressed to the sheriff or any constable of the county, reciting the facts already mentioned, and directing him forthwith to arrest and imprison petitioner in the common jail of the county until he should perform the said order of said court or be delivered by due course of law. Thereupon the sheriff of such county arrested petitoner and imprisoned him as directed.

On the same day, petitioner obtained a writ of habeas corpus from the circuit court of said county and was released on bail, pending a determination by such court of the validity of his imprisonment. Petitioner alleged that the issuance of the warrant was illegal for a number of reasons, most of which are unnecessary to mention here. Among such reasons, however, it was alleged that the statute under which such warrant was issued was contrary to the Michigan Constitution, in that it provided for imprisonment for debt, in violation of the provision of such Constitution prohibiting the imprisonment of any person for debt arising out of, or founded on, a contract, express or implied. The constitutionality of such statute was attacked, also, on other grounds.

After full argument and reargument, and careful deliberation, the circuit court overruled the contentions of petitioner and dismissed the writ of habeas corpus, remanding the prisoner to the custody of the sheriff. Thereupon petitioner applied to the Supreme Court of the state for a writ of certiorari to review the order dismissing said writ of habeas corpus, setting out in his petition for such certiorari fully all of the facts and circumstances and the legal grounds upon which he relied, including the constitutional objections already referred to. This writ the Supreme Court refused to grant, filing no opinion and assigning no reasons for its decision. Thereafter petitioner applied to said circuit court for a writ of injunction restraining the sheriff from further detaining him under the warrant in question. An order to show cause why an injunction should not be granted was issued, but on the hearing of such order the petition was denied and the injunction refused.

Thereupon petitioner filed his application in this court, reciting briefly the facts already referred to, and alleging that, because the warrant under which he is imprisoned was issued without a previous order and without notice to him, such warrant does not constitute due process of law; that the statute authorizing such warrant is contrary to the Michigan Constitution for the reasons previously presented to, and overruled by, the state court, and that such warrant and statute, depriving petitioner of his liberty without due process of law, are in conflict with the United States Constitution.

The facts as already stated are not in dispute, and the sole question presented is whether on such facts petitioner is entitled to his discharge by habeas corpus from this court.

It is, of course, well settled that a federal court will not interfere with a decision of the highest court in a state, determining the validity under the state Constitution of a statute of such state. Merchants' & Manufacturers' National Bank v. Pennsylvania, 167 U.S. 461, 17 Sup.Ct. 829, 42 L.Ed. 236; Rasmussen v. Idaho, 181 U.S. 198, 21 Sup.Ct. 594, 45 L.Ed. 820. I cannot, therefore, consider the questions raised by the contentions that this statute is contrary to the Michigan Constitution.

The arguments of petitioner, based on the contention that his imprisonment is without due process of law and contrary to the United States Constitution, are necessarily founded upon the idea that the issuance of such warrant is in the nature of a proceeding to punish for contempt of court, rather than in the nature of process to enforce an order of the court. With this contention, however, I am unable to agree. It seems to me that the purpose of the statute authorizing such warrant was to provide an effective, if somewhat summary, method of enforcing the orders of the probate court, and that the warrant so authorized is in the nature of a body execution. This construction of the statute is, I think, fortified by the fact that in another subdivision of the same section of the statute, and following the provision already considered, the probate judge is empowered 'to punish any contempt of his authority, in like manner as such contempt may be punished in the circuit court. ' It seems clear that the specific granting of the power to punish for contempt of court, following the granting of the power to issue the warrant in question, indicates an intention to confer two separate and distinct powers; the one being the power to enforce the orders of the court, and the other the power to punish for contempt of court.

This being so, the warrant could, of course, be issued by the judge, without a previous order therefor, and...

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1 cases
  • Huff, In re
    • United States
    • Michigan Supreme Court
    • 5 Junio 1958
    ...answer is found in In re Merrill, 200 Mich. 244, 167 N.W. 30; Bowman v. Wayne Circuit Judge, 214 Mich. 518, 183 N.W. 232; Ex parte Merrill, D.C., 245 F. 778; and Green v. United States, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672. These cases recognize the inherent power of courts to punish s......

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