Ex parte Tremper

• Decision Date: 22 September 1939
• Citation: 8 A.2d 279,126 N.J.Eq. 276
• Parties: Ex parte TREMPER et al.
• Court: New Jersey Court of Chancery

8 A.2d 279

126 N.J.Eq. 276

Ex parte TREMPER et al.

Court of Chancery of New Jersey.

Sept. 22, 1939.

[Copyrighted material omitted.]

Syllabus by the Court.

1. The writ of habeas corpus is not a writ of right; an applicant must show that he is entitled to have it issue, and the burden of proof is upon him.

2. Although there may be no limit to the power of the court to issue the writ, it is the duty of the court, on such an application, to determine in its sound judicial discretion, whether or not the writ ought to issue as a matter of fairness, justice and right, under all the circumstances of the particular case.

3. The writ will not ordinarily be granted where other adequate remedy exists, such as by appeal or writ of error; although even in such ease, under some circumstances it may, and should, properly be granted. 4. The writ will not issue on the application of one imprisoned under the order of a court having competent jurisdiction to make such order, even though no other remedy be open to such applicant.

5. One imprisoned under sentence of a court must show, at least prima facie, circumstances indicating at least a reasonable possibility that the sentencing court was without jurisdiction to pronounce the sentence; otherwise the writ ought not to issue.

6. Even in such case however it does not necessarily follow that the writ ought to issue.

7. In such a case, it is not sufficient ground for denial of the writ that the sentencing court (having jurisdiction to determine the question of its own jurisdiction) had determined that it had jurisdiction to pronounce the sentence; and especially is this true where this latter question of jurisdiction was not actually argued before the sentencing court.

8. Where, however, the claim that the sentencing court was without jurisdiction to pronounce the sentence has been passed upon (and determined adversely to the prisoner) by the court of last resort in direct appellate proceedings, upon precisely the same facts and arguments, semble, that the writ ought not to be granted.

9. Semble, so likewise if such a prior determination (on similar consideration) has been made by the Supreme Court or the Court of Chancery in a prior habeas corpus proceeding.

10. Where the question as to whether a court which has rendered a judgment had jurisdiction to render that judgment has been actually litigated and determined between two parties, semble, that such determination ought to be res adjudicata between such parties,—except perhaps in habeas corpus proceedings.

11. The court, on habeas corpus proceedings, is not conclusively bound by the legal rule of res adjudicata, nor by any statute limiting the time within which application for the writ may be made, nor by any legal or equitable rule applying such a limitation by analogy; nevertheless the court, in considering and determining whether, in sound, judicial discretion and as a matter of fairness, justice and right, the writ ought or ought not to be granted, may, and ought to, give full and adequate consideration and weight to the reasons underlying the said statutory provisions and legal and equitable rules.

12. The writ of habeas corpus, ordinarily, ought not to be issued to inquire into a claim that a sentencing court had no jurisdiction to pronounce the sentence, where the applicant although having theretofore had reasonable opportunity and length of time to present that claim for judicial review made no such endeavor but has acquiesced in the sentence for a number of years, and where he presents nothing by way of explanation or excuse for such default and acquiescence and nothing tending to overcome the likelihood of prejudice to the state resulting from his long delay; although perhaps even in these circumstances the writ should be issued in exceptional cases.

Proceeding in the matter of the application of Donald L. Tremper, James Duncan, and Walter Bennett, for writ of habeas corpus.

Order entered for discharge of the writ and the remanding of the petitioners to the custody of the keeper of the prison.

Arthur C. Mullen, of Jersey City, for petitioners.

Joseph Lanigan and Leo Robbins, Asst. Attys. Gen., for the State.

BUCHANAN, Vice Chancellor.

Petition was filed in this court by the above-named petitioners, Tremper, Duncan and Bennett, setting forth that they are imprisoned in the New Jersey State Prison under and by virtue of sentences imposed on July 17, 1934, by the Ocean County Court of Oyer and Terminer, for the crime of murder; further alleging the occurrence of certain circumstances during the course of their trial, which they contend were legally erroneous and were of such nature, character and effect as to deprive the court of jurisdiction to impose any sentence whatever; further contending that the sentences were and are void, for want of jurisdiction and that their imprisonment thereunder is therefore illegal; and praying the issuance of a writ of habeas corpus, in order that the truth of such allegations and contentions might be inquired into and if found correct, an order made for their discharge from the said imprisonment.

The purpose and function of the writ of habeas corpus is to afford a means whereby a person who claims that he is illegally imprisoned or restrained of his liberty may have that claim inquired into by a competent court, and (if the claim be found well grounded) have himself discharged and freed of that restraint. Chiefly it was and is intended for the benefit of those imprisoned by mandate or order of some authority other than that of a court, in order that they might have the legality of such restraint passed upon by a court; but the benefit of the writ is also extended to those who are imprisoned under order by a court which was not clothed with jurisdiction (legal power or authority) to make such order.

(It is not the function of the writ to bring up for review the correctness of any of the proceedings before a court which did have jurisdiction to entertain and determine such proceedings. It is not a substitute or alternative available in place of writ of error or appeal. If the court which has ordered the imprisonment had jurisdiction of the parties and the subject matter and to pronounce the order or sentence of imprisonment in a proper case, its action cannot be reviewed by habeas corpus. The provisions of the statute—R.S. 2:82-13, N.J.S.A. 2:82-13, formerly 2 Comp.Stat. p. 2639, § 2—which is of course declaratory of, and not in derogation of, the common law, expressly exclude from the benefit of the writ such persons as are imprisoned by virtue of the final judgment of a competent, tribunal of civil or criminal jurisdiction. If the court which ordered the imprisonment was clothed with legal competence—jurisdiction—so to order, it had the lawful power and authority to make a wrong decision as well as a right decision; and the claim that its decision was wrong cannot be brought up for determination in habeas corpus proceedings, unless the claim of wrongful decision be that it had no lawful power to make that order.)

In the instant case the claim of petitioners is that the Court of Oyer and Terminer did not have jurisdiction to render the judgment or sentence under which they are imprisoned. Their right to the writ, however, is not established simply by the presentation of circumstances showing, prima facie, a reasonable possibility that the court, upon the issuance of the writ and the subsequent inquiry and hearing thereunder, would conclude that the sentencing court did in fact lack jurisdiction.

The writ of habeas corpus is a high prerogative writ, not a writ of right. It does not issue as of course, but only where the applicant shows that he is entitled to it. In re Thompson, 85 N.J.Eq. 221, at page 249, 96 A. 102; In re Davis, 107 N.J.Eq. 160, at pages 166, 174, 152 A. 188; Church, Hab.Corp., 2d Ed., §§ 77, 92; 29 C.J. p. 14, § 7, p. 148, § 162; 12 R.C.L., p. 1232, § 48.

The question as to whether or not the applicant, on the circumstances presented by him, is entitled to the issuance of the writ, is a matter for judicial determination by the court to which application is made, in the exercise of sound judicial discretion. In re Thompson, supra, 85 N.J.Eq. at page 249, 96 A. 102; In re Davis, supra, 107 N.J.Eq. at pages 165, 166, 170, 174, 152 A. 188; Church, supra, § 92; 29 C.J. p. 148, § 162.

Thus the writ "will not ordinarily be granted where there is another adequate remedy by appeal, or writ of error, or otherwise". In re Davis, supra, 107 N.J. Eq. at pages 170, 174, 152 A. at page 194; In re Belt, 159 U.S. 95, at page 100, 15 S.Ct. 987, 40 L.Ed. 88; 29 C.J. p. 19, § 11, p. 17, § 9; 12 R.C.L. p. 1186 (although of course even in such circumstances, the writ may be, in certain cases should be, and not infrequently has been, allowed). It seems clear also that, as a proper exercise of sound judicial discretion, ordinarily the writ ought not to be issued— the applicant is not entitled to it as a matter of justice and right—in a case alleging lack of jurisdiction, if it also appeared among the circumstances before the court at the time the application is made, that a precisely similar application upon precisely similar allegations has previously been made to, duly considered, and denied by, a court of equal jurisdiction and standing (as, for instance, where the first application was to the Supreme Court and the second to this court, or vice versa), and especially so, even if there were some other differences in the two applications, if the first court had actually considered the facts and legal principles relied upon as establishing lack of jurisdiction in the sentencing, court and determined that the sentencing court had had jurisdiction; inasmuch as there is provided in this state an appeal from the denial of the writ or denial of discharge after issuance of the writ and hearing thereon. Cf. Selz v. Presburger, 49 N.J.L. 396, 8 A. 118; also Church, supra...