Gillie v. Fleming
| Decision Date | 06 January 1922 |
| Docket Number | No. 23639.,23639. |
| Citation | 191 Ind. 444,133 N.E. 737 |
| Parties | GILLIE, Sheriff, v. FLEMING. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Allen County; Wm. N. Ballou, Judge.
Application for writ of habeas corpus by William Fleming against George W. Gillie, Sheriff. Petitioner discharged from custody, and the Sheriff appeals. Judgment reversed, with corrections.
Vesey & Vesey, Barrett, Morris, Hoffman & Barrett, and A. E. Thomas, all of Ft. Wayne, for appellant.
Harry H. Hilgemann, Wm. Fruechtenicht, and Carl Yaple, all of Ft. Wayne, for appellee.
Appellee brought an action of habeas corpus against appellant in the superior court of Allen county, and appellant made a return which was adjudged insufficient, whereupon appellee was discharged.
The sufficiency of the return is the only question presented for decision. The return stated, in substance, that a verified complaint for an injunction and a restraining order was filed, in which appellee and others were named as defendants, together with a surety company bond, and that a summons to appellee was duly issued and was served on him by the sheriff, and due return was made; that at the same time when he served the summons the sheriff served on appellee a restraining order forbidding him and others to do the acts sought to be enjoined, by delivering to appellee a copy of the order; that such order had been signed by the judge of the circuit court as such judge; that a few days after service of the summons and of a copy of the order an affidavit was filed with the clerk of the court and the judge, in vacation, which stated that after said complaint had been filed, and after the summons and copy of the order had been served, the appellee and other defendants to the suit for an injunction openly and defiantly did the acts forbidden by the court's order, and repeated those acts on succeeding days; that upon the filing of this affidavit the judge of the circuit court signed and issued an order reciting that it had been filed, and that it charged appellee and others with willfully disobeying said order and injunction, and that the court thereupon ordered an attachment for contempt to be issued against appellee and others, requiring them to appear “on the first day of the next term (of court), to be held on the 17th day of July, 1919, and show cause,” etc., and ordering service thereof by arresting appellee and the others and bringing them into court “on the first day of its next session,” unless they should enter into a bond to appear “on the first day of the next term” of court, conditioned to answer such contempt and to pay the plaintiff its costs and damages. The affidavit and order of attachment seem to be in substantial compliance with the statute, unless in the particulars hereafter mentioned. Burns' 1914, §§ 1217, 1218, 1219. The return further recites that appellant was thereupon arrested, and, not giving the required bond, was lodged in jail, pursuant to said order, by the appellant, who was the sheriff of Allen county, and that at the time the return was made appellee was held in custody under said order.
It clearly appears from the return that after the complaint for an injunction and a bond had been filed a summons for appellee and a copy of an injunction order which had been signed by the judge were served on appellee, and that he was afterward charged by affidavit with doing certain acts forbidden by that order, and that thereupon an order was issued commanding his appearance in court at a time named, and that he was arrested and lodged in jail in default of security for his appearance at that time and for his obedience to the order in the meantime.
But appellant objects to the return for each of several reasons, as follows: (a) That the restraining order was dated on the day the complaint was filed, and the return states that it was signed on that day, but the summons was not issued until the next day; (b) that the return does not show the copy of the restraining order served on appellee to have been certified; (c) that it does not show the order to have been signed on the order book of the court, while the petition expressly alleges that the order book had not been signed when the order was disobeyed; (d) that the order of attachment commanded appellee's appearance in court “on the first day of the next term thereof, to be held on the 17th day of July,” whereas the next regular term would not begin until the first Monday of September, and it was therefore ambiguous.
[1] As preliminary to the consideration of any of these propositions the question arises whether, after the circuit court had considered the facts stated in the affidavit for an attachment and those shown by its record, and had adjudged that an attachment should issue, the superior court had power, in a collateral action of habeas corpus, to examine into any of the matters suggested by these objections. The circuit court undoubtedly had jurisdiction of the subject-matter of an action for an injunction, and the attachment of a person for violation of an injunction which it had issued. Burns' 1914, §§ 161, 1204, 1217, 1433. The filing of the complaint and bond and the service of a summons in the action for an injunction gave the circuit court jurisdiction of the person of appellee in that proceeding, and the filing of an affidavit charging that he had disobeyed an injunction, his arrest on an order of court issued thereon, and his lodgment in jail gave that court jurisdiction of his person in the proceeding against him for contempt.
The superior court has no supervisory power over the circuit court, and, even if it had, a writ of habeas corpus is in no sense a writ of error. But, if appellee wished to question mere errors and irregularities, he might have taken an appeal from the interlocutory injunction (Burns' 1921, § 1392; Acts 1915, c. 76, p. 149, § 1, subd. 17), or from any judgment the circuit court might render in the proceeding for contempt of court (Burns' 1914, §§ 1046, 1048; State v. Rockwood, 159 Ind. 94, 64 N. E. 592). A statute which has been in force in Indiana since long before our present constitution was adopted provides as follows:
“No court or judge shall inquire into the legality of any judgment or process whereby the party is in his custody, or discharge him when the term of commitment has not expired *** for any contempt of any court, officer, or body having authority to commit; but an order of commitment, as for contempt, upon proceedings to enforce the remedy of a party, is not included in any of the foregoing specifications.” Burns' 1914, § 1176.
[2] The alleged contempt charged in this case was the willful and violent doing of acts alleged to have been expressly forbidden by an injunction, and if the charge was true it constituted criminal contempt. Thistlethwaite v. State, 149 Ind. 319, 324, 49 N. E. 156. The statute above quoted is merely declaratory of the common law, as administered by courts from the remote past.
The writ of habeas corpus was known to the common law from the earliest times. Ex parte Yerger, 8 Wall. (75 U. S.) 85, 19 L. Ed. 332; Passmore Williamson's Case, 26 Pa. 9, 16, 67 Am. Dec. 374; 1 Bailey, Habeas Corpus, 2; Church, Habeas Corpus (2d Ed.) § 1 et seq.; 21 Cyc. 283.
As early as 1630, upon petition for a writ of habeas corpus by one Chambers, to which return was made that he had been committed by virtue of a decree in the Star Chamber, because of “insolent behavior and words spoken at the council table,” he denied the power of the Court of Star Chamber to punish for words only; Chambers' Case, 3 Croke (Cro. Car.) 133 and 168.
In 1677 the Earl of Shaftsbury petitioned for habeas corpus, and return was made that he had been committed by order of the House of Lords “for high contempt committed against this House.” It was stated in argument that the case was one of first impression, and though imprisonments for contempts had been frequent by one or the other of the Houses of Parliament, no person ever had sought enlargement in the courts until then. Each of the judges delivered an opinion that the Court of King's Bench had no jurisdiction to inquire into a commitment by the House of Lords during the continuance of the session. Earl of Shaftsbury's Case, 1 Mod. 144, 156, 157. Two years later, in 1679, the celebrated Habeas Corpus Act was passed. It introduced no new principle, but provided that the writ must be issued on proper application in vacation as well as in term, and provided a remedy against a court or judge that refused to issue it. 4 Hallam's Constitutional History of England, 500; Church, Habeas Corpus, § 25a.
In 1704 the judges of all the courts of England, except Chief Justice Holt of the King's Bench, resolved that a person committed by the House of Commons for contempt could not be released on habeas corpus. The three justices who delivered the prevailing opinions on behalf of the eleven stated that it was the first habeas corpus ever brought by a person committed by the House of...
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