In re Clay Miller v. Gordon

• Decision Date: 14 November 1914
• Docket Number: 19,505
• Citation: 93 Kan. 382,144 P. 274
• Parties: In re CLAY MILLER, Petitioner, Appellee, v. W. W. GORDON, as Chief of Police, etc., Respondent, Appellant
• Court: Kansas Supreme Court

144 P. 274

93 Kan. 382

In re CLAY MILLER, Petitioner, Appellee, v. W. W. GORDON, as Chief of Police, etc., Respondent, Appellant

No. 19,505

Supreme Court of Kansas

November 14, 1914

Decided July, 1914.

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. HABEAS CORPUS--Appeal from Decision of Probate Court May be Taken. Following the decision in In re Petitt, 84 Kan. 637, 114 P. 1071, it is held that since the adoption of the amended code an appeal may be taken to the district court from a decision of the probate court discharging the petitioner in a habeas corpus proceeding.

2. HABEAS CORPUS--Chief of Police Respondent May Prosecute Appeal. A chief of police, who is made the respondent in a habeas corpus proceeding has such an interest therein that he may prosecute an appeal from an order of the probate court discharging the petitioner. The case of Cook v. Wyatt, 60 Kan. 535, 57 P. 130, is overruled.

3. HABEAS CORPUS--Appeal--Procedure in Case Prisoner is Remanded by District Court. The respondent in a habeas corpus proceeding appealed to the district court from an order of the probate court discharging the petitioner. The district court dismissed the appeal on the ground that it had no jurisdiction. The respondent then appealed to the supreme court. No supersedeas was granted and no stay was asked of the order discharging the petitioner. Held, that the questions raised are not moot, and that in case the district court upon a trial of the appeal on its merits remands the petitioner, the court in which the prosecution was commenced will have authority to issue a warrant for the petitioner if that is found necessary.

Richard J. Higgins, and W. H. McCamish, both of Kansas City, for the appellant.

T. A. Pollock, of Kansas City, and Cowherd, Ingraham, Durham & Morse, of Kansas City, Mo., for the appellee.

Porter J. West, J., dissents.

OPINION

PORTER, J.

The questions to be determined in this case are: First, does an appeal lie to the district court from a judgment of the probate court discharging a petitioner in a habeas corpus proceeding? Second, has a public officer, who is the respondent in the habeas corpus proceeding, such an interest as will authorize him to institute an appeal?

Clay Miller, the petitioner, was arrested upon view by W. W. Gordon, chief of police of Kansas City, and taken before the judge of the police court on the charge of having violated an ordinance of the city, which declares that the driving of wagons upon the streets of the city for the delivery of intoxicating liquors is a nuisance and a misdemeanor. No written complaint was filed and no warrant for his arrest issued. The case was set for trial at a subsequent date. The petitioner at once applied for and obtained from the probate court of Wyandotte county a writ of habeas corpus, directed to the respondent as chief of police, and upon the hearing the court ordered the petitioner's discharge. The respondent thereupon appealed the case to the district court. That court dismissed the appeal on the ground that it had no jurisdiction. This is an appeal from the judgment of the district court.

Upon the question whether an appeal will lie in habeas corpus where the petitioner has been discharged there has always been more or less conflict in the decisions of the courts. Many of the authorities hold that an appeal will not lie; that the order discharging the petitioner is not a final order because the petitioner, if remanded to the custody of the officer, could apply to any other court having jurisdiction in habeas corpus until he has exhausted the whole judiciary power of the state; and further, that where he is discharged by the proceeding nothing is determined except that he is entitled to his liberty so far as the proceedings under which he is held are concerned. Other courts have gone to the extent of holding that to permit an appeal from a judgment discharging the petitioner amounts, in effect, to a suspension of the writ of habeas corpus and a denial of the right, and therefore violates the constitutional provisions against the suspension of the writ. Some of the courts which have held that an appeal will not lie have rested their decision upon the nature of the writ and the purpose and objects to be obtained by the issuance of it. Chief Justice Shaw, of Massachusetts, in the case of Wyeth v. Richardson, 76 Mass. 240, used this language:

"The general principles of law are opposed to the allowance of exceptions in this case. The great purpose of the writ of habeas corpus is the immediate delivery of the party deprived of personal liberty. The allowance of exceptions would be inconsistent with the object of the writ. The consequence of allowing exceptions must be, either that all further proceedings be stayed, which would be wholly inconsistent with the purpose of the writ." (p. 241.)

Substantially the same reasoning was adopted by the supreme court of North Carolina in State v. Miller, 97 N.C. 451, 1 S.E. 776, and also in Ex parte White, 2 Cal.App. 726, 84 P. 242. To the same effect also is In re Clasby, 3 Utah 183, 1 P. 852. In the last-cited case it was said in the opinion:

"The object of the writ is that the right to a discharge may in a summary manner be at once determined. If the people have a right to an appeal when the plaintiff is by order of the court or judge discharged, then in such case the writ falls far short of the purpose for which it was intended, and for the last two centuries has been used. Suppose for a moment the appeal to be well taken, and that this court should find that the court below erred in discharging the plaintiff; can this court issue a bench-warrant for his re-arrest, or direct the justice of the peace to again issue his warrant upon the same or original complaint for arrest of the person there charged with the commission of a criminal offense, for which he was arrested, imprisoned, and discharged from arrest by the district court? Or suppose, in the meantime, a grand jury have passed upon the facts involving the guilt or innocence of the plaintiff, and have refused to find an indictment: ought the plaintiff to be again arrested by an order of this court, and compelled to defend himself against an arrest made on such an order?

"It is easy to see that such proceedings would inevitably result in inextricable confusion; and if the discharge of the applicant upon a writ of habeas corpus, before a court or judge having jurisdiction, is an order or judgment from which an appeal can be taken to this court, necessarily attended with unavoidable delay, the value of this great writ as a safeguard of personal liberty is at least greatly impaired, if it is not changed into a means of oppression." (p. 185.)

In Wisener, Sheriff, v. Burrell, 28 Okla. 546, 118 P. 999, the court followed the reasoning of the case just referred to, and held that an appeal does not lie from an order in habeas corpus discharging a party held for extradition for a criminal offense. See, also, authorities cited in a note to this case in 34 L.R.A. N.S. 755. Other cases in support of these propositions will be found cited in a note to the case of Bleakley v. Smart, 74 Kan. 476, 87 P. 76, in 11 A. & E. Ann. Cas. 129; In re Begerow, 136 Cal. 293, 68 P. 773; and 9 Encyc. Pl. & Pr. 1072, 1085.

It is the appellee's contention that the first question has been answered in former decisions of this court which have settled the law to be that there is no appeal from an order discharging a petitioner in habeas corpus, except in a case where the question involves the right to the custody of minor children. Among the cases cited are Cook v. Wyatt, 60 Kan. 535, 57 P. 130, and Bleakley v. Smart, supra. In neither of these cases, however, was this question decided. Both recognized the distinction between an action to determine the right to the custody of children and the ordinary use of the writ of habeas corpus, but neither case went further than to state that the question for consideration here was one upon which there is a conflict of authority. Thus in Cook v. Wyatt, supra, it was said in the opinion:

"Many authorities hold that in the absence of statutory provisions the decision in a habeas corpus case is not so far final and conclusive in its character as to support a review or give an appeal." (p. 536.)

In the opinion in Bleakley v. Smart, 74 Kan. 476, 87 P. 76, it was said:

"Great conflict of opinion exists upon the question whether a judgment in habeas corpus is appealable." (p. 480.)

But it was held that "an appeal will lie from a judgment of the district court in habeas corpus proceedings determining the rights of conflicting claimants to the custody of a child." (Syl. P 1.)

However, since the adoption of the amended code the court has had the question before it again in the case of In re Petitt, 84 Kan. 637, 114 P. 1071, where it was ruled in the syllabus as follows:

"An appeal may be taken to the district court from a decision of the probate court in a habeas corpus proceeding." (Syl. P 3.)

The court rested its decision upon the broader language of the amended code by which proceedings in error are abolished and provision made that judgments and orders of the probate court may be reviewed on appeal. In the opinion it was said:

"The probate court is a court of record and is vested with jurisdiction in cases of habeas corpus, and as to proceedings clearly within its jurisdiction it is not to be considered as an inferior court; but, even as to habeas corpus, its orders and judgments may be corrected and revised upon appeal. . . . This broadened the power theretofore granted, so that now there may be a review...