Ex parte Sullivan

• Decision Date: 02 February 1948
• Docket Number: 3514.
• Citation: 189 P.2d 338,65 Nev. 128
• Parties: Ex parte SULLIVAN.
• Court: Nevada Supreme Court

189 P.2d 338

65 Nev. 128

Ex parte SULLIVAN.

No. 3514.

Supreme Court of Nevada

February 2, 1948

Appeal from Seventh Judicial District Court, White Pine County Harry M. Watson, Judge.

Proceeding in the matter of the application of Daniel Sullivan for a writ of habeas corpus to secure his release from custody under an extradition warrant, opposed by Thomas J. McLaughlin as sheriff of the County of White Pine. From an order discharging petitioner from custody and from an order denying sheriff a new trial, sheriff appeals.

Appeal dismissed.

Alan Bible, Atty. Gen., Geo. P. Annand and Homer Mooney, Deputy Attys. Gen., and C.J. McFadden, Dist. Atty of Ely, for appellant.

Gray & Horton, of Ely, and Wm. J. Cashill, of Reno, for respondent.

HORSEY Justice.

This purports to be an appeal by Thomas J. McLaughlin, as sheriff of the County of White Pine, State of Nevada, from an order of the presiding judge of the Seventh Judicial District Court of the State of Nevada, in and for the County of White Pine discharging one Daniel Sullivan from the custody of said sheriff, after a hearing duly had upon a writ of habeas corpus issued out of said court. The appeal also purports to be from an order of said court denying the said sheriff a new trial.

The said Daniel Sullivan, at the time of the issuance of said writ of habeas corpus, and of the making of said order of discharge, was being held by the said sheriff, after the said Sullivan had been arrested pursuant to an extradition warrant issued by the Governor of the State of Nevada upon the requisition of the Governor of the State of Michigan, for the return of the said Sullivan to the County of Macomb, in said last mentioned state, to answer for a crime alleged to have been committed there by the said Sullivan.

The respondent in this proceeding, Daniel Sullivan, has moved this court to dismiss the appeal of the said sheriff, and the question now before this court is whether, under the Constitution and laws of the State of Nevada, an appeal to this court lies to review an order of a district court, or judge, in a habeas corpus proceeding, either discharging a prisoner, or refusing to discharge him and dismissing his petition.

Our Habeas Corpus Act, N.C.L.1929, vol. 5, Secs. 11375-11414, contains no provision conferring the right of appeal, either upon the petitioner for the writ, or upon the respondent to whom it is directed. Neither our Constitution, nor our statutes, contain any express provision for appeal in habeas corpus cases.

The question, then, more precisely stated, is whether, in the absence of a constitutional or statutory provision expressly conferring the right of appeal, an appeal will lie in a habeas corpus proceeding at the instance of either the prisoner being held in custody on a criminal charge, or, on the other hand, on behalf of the officer, or the state, resisting his discharge, from an order denying the discharge of the prisoner, or from an order discharging him.

Upon this important question, as upon many others in the realm of jurisprudence, we find the authorities in irreconcilable conflict.

The very great weight of authority, however, is to the effect that, in the absence of express statutory authorization, no appeal will lie to the Supreme Court from such an order or judgment of the lower court, or judge, in a habeas corpus proceeding, where the party being deprived of his liberty is held upon criminal process. This is also the rule at common law. 2 Am.Jur. 922, sec. 122, and the cases cited in support of the text; Edmonson v. Ramsey, 122 Miss. 450, 84 So. 455, 10 A.L.R. 385; Baird v. Nagel, 194 Ind. 87, 142 N.E. 9, 30 A.L.R. 1322, and the many cases cited and discussed in the notes; see, also, 29 C.J. p. 183, and the cases cited in footnote 14; 39 C.J.S., Habeas Corpus, § 109.

The courts of a few states have taken the opposite view, notably the Supreme Courts of Kansas, Wisconsin (in the earlier cases--they have now a statute conferring the right of appeal on either party), Utah, South Dakota and Washington. The principal Kansas case on the question appears to be Miller v. Gordon, 93 Kan. 382, 144 p. 274, Ann.Cas.1916D, 502, which overruled the earlier case of Cook v. Wyatt, 60 Kan. 535, 57 P. 130.

In State ex rel Durner v. Huegin, 110 Wis. 189, 85 N.W. 1046, 62 L.R.A. 700, the opinion is ably prepared and deals exhaustively with other questions, but same is of slight importance upon the question of the right of appeal in habeas corpus proceedings in the absence of statute, as Wisconsin had theretofore enacted their statute, Statutes of Wisconsin, 1898, sec. 3043, conferring upon either party the right of review by a writ of error. State ex rel. Durner v. Huegin, however, 'set out with seeming approval' (10 A.L.R. p. 392) the earlier case of State ex rel. McCaslin v. Smith, 65 Wis. 93, 26 N.W. 258. In the latter case, on pages 258, 259 of 26 N.W., it is stated:

'The counsel for the defendant in error, while not admitting that a writ of error lies to review this decision of the circuit court, declined to argue the question of practice. The assistant attorney general, however, discussed the question, claiming that a review of the decision may be had in that manner. He insists that the decision of the circuit court affirming the order of the commissioner is in the nature of a final judgment, which may be reviewed by the court on writ of error. In numerous cases this court has reviewed proceedings on habeas corpus had before commissioners or a judge at chambers on certiorari, but the precise question now presented has not been decided. There is no express provision made by statute for reviewing such a decision of the circuit court, but we are inclined to hold that it may be had on a writ of error. The order made in such a proceeding by the court is in the nature of a final judgment, and the policy of our constitution and laws is to allow a review of such an adjudication; and it is most in accord with our rules of practice and the analogies of the law to allow this to be done on writ of error. So far as the dicta of our decisions bear upon the point, they favor that practice. See In re Crow, 60 Wis. 349, 19 N.W. 713. It is true there is much authority for holding that a review of a decision on habeas corpus cannot be had by writ of error without a statute authorizing it, and the reason given is that the decision is not in the nature of a final judgment. But there is also much authority the other way. See Yates v. People, 6 Johns., N.Y., 337; Ableman v. Booth, 21 How. 506 ; and cases cited by Mr. Justice Breese in his dissenting opinion in Hammond v. People, 32 Ill. 446-457, 83 Am.Dec. 286. But we shall not further discuss the question, but sustain the writ.'

In Utah, the earlier cases of In re Clasby, 3 Utah 183, 1 P. 852, and Mead v. Metcalf, 7 Utah 103, 25 P. 729, set forth, ably and clearly, strong reasons why at least appeal by the state or by the officer detaining the prisoner should not be sanctioned. The Clasby case is quoted from at length in the note in 10 A.L.R. pages 393, 394. That case is also referred to in Wisener v. Burrell, 28 Okl. 546, 118 p. 999, on page 1000, 39 L.R.A.,N.S., 755, Ann.Cas.1912D, 356, on page 358 of the latter, as 'one of the best-reasoned cases on this question,' and the opinion is extensively quoted.

We will now quote from the other of the earlier Utah cases, Mead v. Metcalf, supra. The opinion in that case, 25 P. 729, 730, is, in part, as follows:

'Upon such a hearing the guilt or innocence of the prisoner of the crime charged, or of the right to reimprison him in consequence of it, cannot be finally determined. The order of his discharge simply releases him from the particular restraint to which he is subjected. Such a decision cannot convict him or acquit him of the crime, or determine his imprisonment in consequence of it. It is not final. Section 9 of the Organic Act of Utah Territory, provides that 'writs of error, bills of exceptions, and appeal shall be allowed in all cases from the final decision of said district courts to the supreme court under such regulations as may be prescribed by law.' And section 3635, vol. 2, Comp.Laws Utah 1888, provides that 'an appeal may be taken to the supreme court from the district court from all final judgments in an action or special proceeding,' etc. And section 5134 of the same volume provides that 'either party in a criminal action may appeal to the supreme court on questions of law alone.' The order from which the defendant attempted to appeal was not a final judgment within either of the provisions above quoted; nor did the order of discharge upon the hearing upon the writ of habeas corpus involve a question of law only; nor do we think an appeal from such an order within any special provision of the statute. In some of the states the decision of the court upon such a hearing may be reviewed at the instance of the state when the prisoner is discharged, as well as at the instance of the prisoner when he is remanded. In others the appeal is allowed only at the instance of the prisoner when he is remanded, or when the writ is denied. The right of appeal does not exist in either case without statutory authority. To entangle the proceeding by writ of habeas corpus with an appeal would deprive it of its efficacy as a simple and speedy remedy for the wrongs for which it was designed. In many cases an appeal would be an idle process unless the prisoner could be held during its pendency; and, if so held, this beneficent and timehonored writ in all such cases would be thereby deprived of its efficacy as a means of swift relief from oppression by unlawful imprisonment. In the case of In re Clasby, 3 Utah 183, 1 P. 852, the court held that neither the...