Ferree v. Douglas

• Decision Date: 18 July 1941
• Docket Number: 85,93,83,91,97-1941,89,86,96,87,90,81,82,94,88,92,84,95
• Parties: Ferree et al., Appellants, v. Douglas
• Court: Pennsylvania Superior Court

21 A.2d 472

145 Pa.Super. 447

Ferree et al., Appellants, v. Douglas

Nos. 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97-1941

Superior Court of Pennsylvania

July 18, 1941

Argued April 14, 1941.

Appeals from order of C. P. Westmoreland Co., Aug. T., 1940 No. 25, in case of Agnes Ferree et al. v. Francis Douglas.

Joint petition for writ of habeas corpus.

The facts are stated in the opinion of the Superior Court.

Decree entered dismissing writ, opinion by Keenan, J. Relator appealed.

Errors assigned, among others, related to the action of the court below in dismissing the writ.

Appeals dismissed.

Theodore A. Epstein, with him Hayden Covington and Joseph F Rutherford, for appellants.

Fred B. Trescher, of Kunkle, Walthour & Trescher, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Rhodes, Hirt and Kenworthey, JJ.

OPINION

Keller, P. J.

Separate appeals were taken to this court from the order of the Court of Common Pleas of Westmoreland County dismissing a joint petition for writ of habeas corpus filed by seventeen persons held in the county jail of Westmoreland County, who had been individually convicted and sentenced by the Mayor of the City of Jeannette for violation of a city ordinance.

The errors in the institution of this proceeding, in the caption of the suit, and on the hearing before the court, illustrate the danger of attorneys from outside jurisdictions, who are not familiar with our laws and practice, attempting to institute and conduct legal proceedings in this state. The petition should have been dismissed on presentation. A commitment to prison acts individually on each person committed and a writ seeking his discharge on habeas corpus must likewise be individual. Seventeen persons cannot join in one petition for a writ of habeas corpus, any more than seventeen persons convicted of crime and sentenced to prison could take one appeal. The sentence of imprisonment acts upon each convict personally and separately and each must take a separate appeal: Durbin v. Com., 45 Pa.Super. 156; Com. v. Falls, 102 Pa.Super. 392, 156 A. 894; Com. v. Schollenberger, 17 Pa.Super. 218. When filed the petition institutes a new proceeding in which the Commonwealth, at the relation of the particular prisoner seeking to be discharged, is the petitioner and the keeper of the prison detaining him is the respondent. And such a writ does not open up for review the guilt or innocence of the prisoner, who has been summarily convicted before a magistrate, or court not of record, after a hearing at which witnesses were sworn and testified, and whose conviction has not been reversed on appeal to the court of quarter sessions, nor set aside on certiorari to the common pleas.

These appellants, along with Charles H. Stewart, were arrested on April 2, 1939 for violating ordinance No. 60 of the City of Jeannette regulating canvassing for the sale of merchandise within the city. A hearing was had before the mayor and witnesses were heard. The mayor adjudged all of them guilty and imposed a fine of $ 50 and costs on each defendant, which was within the penalty prescribed by the ordinance. ^[1] The defendants petitioned the Court of Quarter Sessions of Westmoreland County for allowance of an appeal, pursuant to the provision of the Constitution (Art. V, sec. 14), and the Act of April 17, 1876, P. L. 29, and its amendments of July 11, 1917, P. L. 771, and April 1, 1925, P. L. 98, carrying it into effect. See Com. ex rel. Marsh v. Lindsey, 130 Pa.Super. 448, 198 A. 512, note p. 451, 198 A. 512. Appeals were refused by the court of quarter sessions, and the defendants appealed to this court. Only one of the appeals, was argued. On November 17, 1939 we dismissed the appeal. See Com. v. Stewart, 137 Pa.Super. 445, 9 A.2d 179. The Supreme Court of this State refused an appeal, (137 Pa.Super. XXXIII), and the Supreme Court of the United States denied certiorari (309 U.S. 674 and 699). That case cannot be reopened on a writ of habeas corpus. In the history of the case and brief of argument on that appeal it was stated by the counsel for appellant, without contradiction by counsel for appellee, that the mayor ordered each defendant, in default of payment of the fine imposed and costs, to be committed to the county jail for a period of five days. It now appears that this statement was erroneous; that what the mayor did was to impose the fine and costs on each defendant. After the Stewart case was decided, the other defendants, whose cases were to be governed by it, presented themselves to the keeper of the county jail to be committed and the mayor issued a commitment directed to the constable and keeper respectively, ordering the former to convey and deliver each defendant -- naming him or her -- to the keeper of the common jail to be committed for non-payment of said fine and costs; and ordering the latter to receive into his custody in said jail and safely keep him or her until discharged by due process of law.

After five days' imprisonment in the jail, these seventeen appellants presented to the Court of Common Pleas of Westmoreland County a joint petition for a writ of habeas corpus, using the same caption as the petition to the court of quarter sessions for an appeal from the judgments in the summary conviction before the mayor.

A hearing was had in the course of which the sitting judge properly refused to go into the merits of the original conviction (see Gordon, Secy. of Banking v. Hartford Sterling Co., Lofland's Appeal, 341 Pa. 401, 20 A.2d 224, filed May 12, 1941); but after hearing testimony relevant to the pending proceeding, he dismissed the writ and remanded the petitioners into the custody of the keeper of the jail to be there kept until discharged by due process of...