Hammond v. the People

• Decision Date: 30 April 1863
• Citation: 1863 WL 3200,32 Ill. 446,83 Am.Dec. 286
• Parties: DAVID S. HAMMOND, Sheriff of Cook County,v.THE PEOPLE, etc., ex rel. JOSEPH VACARO.DAVID S. HAMMOND, Sheriff of Cook County,v.THE PEOPLE, etc., ex rel. PAUL CELLA.
• Court: Illinois Supreme Court

32 Ill. 446

1863 WL 3200 (Ill.)

83 Am.Dec. 286

DAVID S. HAMMOND, Sheriff of Cook County,

v.THE PEOPLE, etc., ex rel. JOSEPH VACARO.DAVID S. HAMMOND, Sheriff of Cook County,

v.THE PEOPLE, etc., ex rel. PAUL CELLA.

Supreme Court of Illinois.

April Term, 1863.

ERROR to Circuit Court of Cook county, brought by plaintiff in error, to review the action of the court below in discharging from imprisonment Joseph Vacaro and Paul Cella, upon writs of habeas corpus, and in rendering judgments therein for costs against plaintiff in error, the officer who held them in custody.

The petitions for the writs are the same in all respects, except as to the names of the petitioners. Vacaro's petition alleges his arrest, delivery, as a prisoner, to plaintiff in error, and imprisonment by him in the jail of Cook county by virtue, as he is informed, of a certain writ issued upon a judgment rendered by a justice of the peace against one Joseph, and in favor of one Peter Corbin; that petitioner is by birth an Italian and unable to read or write English, which he understands and speaks indifferently, and does not know the contents of said writ except upon information; and alleges, upon information and belief, that said writ was issued as aforesaid against one Joseph, and not against petitioner, whose arrest it does not warrant. It also alleges that said judgment was rendered, in his absence, and that he was not a party thereto; that his true name is Joseph Vacaro, by which name he has always been known, and by no other; the illegal nature of his imprisonment, etc., and prays for a writ of habeas corpus.

The return to the writ, issued upon this petition, showed that the defendant was held by virtue of a certain writ of ca. sa., issued by a justice of the peace named Calvin DeWolf.

It appeared that Vacaro and Cella had been served with process in actions of trover before said justice, by the names, “Joseph,” and “Powell,” respectively, and both were present at the return day of the writs, but did not appear in their respective actions; that they were the persons intended to be sued; that upon the dismissal of the suits on account of the plaintiff's not having filed a bond for costs, on Vacaro and Cella's refusing to tell plaintiff's agent their names, new actions of trover were commenced against them, and they respectively served with process under the same names as in the previous actions, in which new actions judgments by default were, in their absence, neither of them appearing, rendered against them, respectively, and writs of ca. sa. issued against them thereon by the names, “Joseph” and “Powell,” respectively, and they detained in jail by plaintiff in error by virtue thereof. It appeared that the parties were not known by any other than their true names, Joseph Vacaro and Paul Cella.

The assignments of error raised the questions, (1) whether a writ of error lies to review the orders of the court below discharging the prisoners; (2) whether, if it does not so lie, it lies to review the judgments against the officer for costs; and whether the officer was liable for costs; and (3) whether an arrest of a party may lawfully be made by virtue of a writ issued in a wrong name.

Bailey, Gary & Williams, for plaintiff in error.

Smith, Hart & Clyde, for defendant in error.

WALKER, J.

The question is presented by the record in this case, whether a writ of error lies upon the order rendered upon the hearing of a habeas corpus. By a comparison of the statutes, it will be found, that we have incorporated into our habeas corpus act, all of the material provisions of the British statutes of the 31 Car. II, c. 2, and the 56 Geo. III, c. 100. It has been frequently said that these statutes were only declaratory of the common law on that subject, with some slight changes in the practice under the writ. Having adopted the substance of the British acts in our statute, we may reasonably look to their courts for the practice that has obtained under the common law and their enactments, as it is only reasonable to suppose that our legislature designed to adopt the practice so far as it is adapted to our circumstances, as well as the provisions of the law itself.

Upon a careful examination of the reported cases in Great Britain, which have arisen under the common law or their statutes, it is believed that no case can be found, in which it is intimated, that a writ of error may be maintained on a judgment of a court or the order of a judge on a trial of a habeas corpus. But in the case of the City of London, 8 Coke, 121, which was on a habeas corpus, Lord COKE, in reporting the case, says, that to an objection that was urged, “it was answered and ruled that this is not a demurrer in law, but a return on a writ of privilege, upon which no issue can be taken or demurrer joined, neither upon our award herein doth any writ of error lie, and therefore the return is no other but to inform the court of the truth of the matter, in which such a precise certainty is not required as in pleadings.”

In the case of The King v. The Dean and Chapter of Trinity College, 8 Mod., 27, which was on a writ of mandamus, the court, in deciding the case, say that “It is against the nature of a writ of error to lie on any judgment, but in cases where an issue may be joined and tried, or where judgment may be had upon a demurrer, and joinder in demurrer, and therefore it will not lie on a judgment for a procedendo, nor on the return of a habeas corpus.” In Comyn's Digest, title, Pleader, 3 B. 7, it is said that it will not lie upon a habeas corpus denied. In the case of Regina v. Paty, 2 Salk., 503, after the trial on the writ of error had resulted in refusing to release the prisoners, a question was raised, and referred to all of the judges, whether the queen ought to allow a writ of error, in that or in any other case, as a matter of right, or as a mere matter of grace Ten of the judges held that the queen could not deny the writ, but that it was grantable, ex debito justitiæ, except in cases of treason or felony. Two of the judges held that the subject could not demand the writ in any criminal case. “Then it was a doubt whether a writ of error lay upon a judgment on a habeas corpus.” From this case it appears that whilst all of the judges agreed that the subject might demand the writ in all cases but treason and felony, and two of them held that it would not in any criminal case; still it was doubted whether it lay on a judgment on a habeas corpus. This seems to be the farthest that any case has gone in opposition to the cases of The City of London, and The King v. The Dean and Chapter of Trinity College.

All of the old cases where the question has been presented, or it has been referred to, hold that a writ of error will not lie on a fine for a contempt, a proceeding for a procedendo, a mandamus or a habeas corpus. These cases all depend upon the same same rule, and are governed by the same principle. The fact that no case can be found in the British reports, where a writ of error has been sustained on a judgment in a habeas corpus, is almost conclusive that the jurists of that country regarded the law as being clearly and well settled, that such a writ could not be maintained. And when it is remembered that in that government, individual liberty has, at all times and under all reigns, been an object of the greatest solicitude, and their peculiar boast, it would be unaccountable, if such a right existed, that it had not been invoked in some of the many struggles for its maintenance.

On this side of the Atlantic, however, the same uniformity of decision has not obtained. Yet the current of authority is largely against allowing the writ. In the case of Ex parte Yates, 6 Johns., 337, it was held, by a divided court, that the writ could be maintained. Again, in the case of Holmes v. Jamison, 14 Pet., 540, by a bare majority of its members, the court announced the same rule. These are the only cases we have been able to find which announce the doctrine, except in courts where the right has been conferred by statutory enactment. It would seem that these decisions were not regarded as satisfactory, as both the congress of the United States and the legislature of New York adopted statutes providing that a writ of error might be prosecuted on such a judgment. And since their adoption, no doubt numerous reported cases may be found from their courts. This legislation would seem to impair the force of the previous adjudications as authority. But, at most, they seem to stand alone and unsupported.

Opposed to these cases are found numerous decisions of the various courts of the union, as Rassell v. Commonwealth, Penr. & Watts, 82; Commonwealth v. Jones, 3 Serg. & Rawle, 158; Bell v. The State, 4 Gill, 301; Jones v. Timberlake, 6 Rand., 680, note; Wade v. Judge, 3 Ala., 130; Steal v. Shirley, 9 Smedes & Marsh, 383; Howe v. The State, 6 Mo., 690; Ex parte Mitchell, 1 La. An., 413; Weddington v. Sloan, 15 B. Mon., 147; Ex parte Perkins, 2 Cal., 424. Thus it is seen that the highest judicial tribunals of eight of the states of the union have declared that a writ of error will not lie in such a case. These, together with the practice of the British courts largely preponderate as authority. When it is considered that this writ is regarded in Great Britain as the bulwark of their liberty, and when we refer to the struggles for its maintenance against usurpation by the crown, it seems to be conclusive, that if such right existed, either at common law or under the statute, it would have been asserted by their courts.

But, independent of authority, we are unable, upon principle and reason, to admit that the writ can be allowed until it is authorized by legislation. It is conceded by all, that a writ of error will only lie on a final judgment. It will not lie to review an interlocutory order. At the common law, it would not lie to review a judgment awarding a peremptory mandamus, a...