Field v. Putman

• Decision Date: 31 March 1857
• Docket Number: No. 20.,20.
• Citation: 22 Ga. 93
• Parties: William G. Field, plaintiff in error. vs. Willis Putman, defendant in error.
• Court: Georgia Supreme Court

22 Ga. 93

William G. Field, plaintiff in error. vs. Willis Putman, defendant in error.

No. 20.

Supreme Court of the State of Georgia

MARCH TERM, 1857.

Certiorari, in Forsyth Superior Court. Decision by Judge, Trippe, at September Term, 1856.

William G. Field, the plaintiff in error, had been arrested by capias ad satisfaciendum, issued against him at the suit of Willis Putman; he gave bond and security for his appearance, to take the benefit of the honest debtors' act of 1823. At the term of the court to which he was required to appear, not availing himself of the provisions of said act, he was surrendered by his sureties, and the Court made an order that he be imprisoned in the common jail of Forsyth county, until he make a disclosure of his property andeffects, and give the notice required by law. Under this order, Field was confined in jail for about nineteen months; the plaintiff in ca. sa. paying during that time the jail fees required by the jailor. On the 15th day of May, 1854, Field applied for a habeas corpus, returnable before the Justices of the Inferior Court, claiming to be discharged from his imprisonment, on the ground that plaintiff in ca. sa. had given no bond for jailor\'s fees, and more than one week\'s jail fees for dieting prisoner was due and unpaid.

Upon hearing the application, the Inferior Court discharged the prisoner, on the ground that the jail fees had not been paid weekly, as required by statute in such case provided.

To this decision of the Inferior Court, discharging Field, Putman excepted, and brought the same for review and reversal, by certiorari, before the Superior Court. The Justices of the Inferior Court filed their answer, setting forth the foregoing facts, and after argument, the Court sustained the certiorari, and ordered the judgment of the Justices to be set aside, on the ground, that no notice of the application for habeas corpus, on the trial, either verbal or otherwise, had been given to the plaintiff Putman or his attorney. And defendant Field by his counsel excepted to this decision, and tenders his bill of exceptions.

Brown, by Walker, for plaintiff in error.

Irwin, for defendant in error.

By the Court.—Lumpkin, J., delivering the opinion.

The first question to be considered in this case is, ought the certiorari to have been dismissed?

It is insisted that it should have been, because not taken out in conformity with the 54th section of the Judiciary Act of 1799. That section provides that, "when either party in any cause shall take exceptions to any proceedings in anycase affecting the real merits of such cause, the party making the same shall offer such exceptions in writing, which shall be signed by himself or his attorney; and if the same shall be overruled by the Court, it shall and may be lawful for such party, on giving twenty days\' notice to the opposite party, or his attorney, to apply to one of the Judges of the Superior Court, and if such Judge shall deem the said exceptions to be sufficient, he shall forthwith issue a writ of certiorari, directed to the Clerk of such Inferior Court, requiring him to certify and send up to the next Superior Court, to be held in the said county, all the proceedings in the said cause; and at the term of the Superior Court to which said proceedings shall be certified, the said Superior Court shall determine thereon, and order the proceedings to be dismissed, or return the same to the said Inferior Court, with order to proceed in the said cause." Cobb 523.

It is certainly true, that the mode of suing out this certiorari, was not a strict or even a substantial compliance with thy statute. The exceptions in writing have to be signed by the party and overruled by the Court, and not by the individual members, some thirty days or more after the adjournment of the Court; still, irregular as the proceedings may have been, it was worth something to the Judge of the Superior Court, in certifying to him as to what did transpire in the cause; especially as the return was made by the proper officer, admitting the truth of the fact contained in the exceptions. The Courts should look to the substance of things. Suppose a bill was filed praying an injunction, which the complainant had omitted to verify, the defendant, however, overlooking the defect, puts in his answer, confessing the facts upon which the equity of the bill rests, would the injunction be dissolved? But a sufficient, and perhaps a more satisfactory answer to the objection is, that the petition for certiorari was sworn to by Mr. George N....