In re Heath

• Citation: 19 P. 926,40 Kan. 333
• Parties: In the matter of the Petition of J. A. HEATH for a Writ of Habeas Corpus
• Decision Date: 08 December 1888
• Court: United States State Supreme Court of Kansas

19 P. 926

40 Kan. 333

In the matter of the Petition of J. A. HEATH for a Writ of Habeas Corpus

Supreme Court of Kansas

December 8, 1888

Original Proceeding in Habeas Corpus.

PETITION for a writ of habeas corpus, filed in this court on October 13, 1888, by J. A. Heath, who alleged that he was unlawfully imprisoned by D. D. Britton, sheriff of Allen county. The facts are stated in the opinion herein, filed at the session of the court in December, 1888.

Joseph Stewart, for petitioner.

L. W Keplinger, contra.

HORTON C. J. All the Justices concurring

OPINION

HORTON, C. J.:

S. A. Brown and T. E. Parish, partners as S. A. Brown & Company, obtained a judgment in the district court of Allen county, on March 31, 1888, against J. A. Heath, for the sum of $ 5,648.80, and costs. On April 6, 1888, T. W. Phelps, as agent of Brown & Company, made an affidavit setting forth that there remained unpaid upon the judgment $ 3,006.34, together with interest and costs; and also setting forth that J. A. Heath fraudulently incurred the obligation upon which the judgment was rendered; that he had removed his property out of the jurisdiction of the court with the intent to prevent the collection of the money due on the judgment; that he had property which he fraudulently concealed with like intent; and that he had disposed of a part of his property and converted the same into money, with intent to defraud his creditors and prevent his property from being taken in execution. Thereon he asked an execution against the person of J. A. Heath. Subsequently this affidavit was presented to the judge of the district court of Allen county, and upon the 21st day of April, 1888, an execution was ordered by the judge against the person of J. A. Heath, under the provisions of §§ 505-507 of the civil code. On April 23, 1888, the clerk of the district court of Allen county issued to the sheriff of said county, under the direction of the district judge of that county, an order or execution against the person of J. A. Heath, commanding him to arrest and commit him to the jail of Allen county until the judgment of S. A. Brown & Company was paid, or he was otherwise discharged by law. Upon this order or execution, J. A. Heath was arrested and committed to jail.

In the action of S. A. Brown & Company against J. A. Heath tried on March 31, 1888, Georgia J. and Anna R. Amos also recovered a judgment against J. A. Heath, for the sum of $ 2,806.25, and costs. On April 6, 1888, G. A. Amos, as attorney of the judgment creditors, Georgia J. and Anna R. Amos, made affidavit for an execution against the person of J. A. Heath, under the provisions of §§ 505-507 of the civil code. On the 21st of April, 1888, the district judge of Allen county allowed an execution against the person of J. A. Heath, under the provisions of said § 507; and on the 23d day of April, 1888, the district clerk of Allen county issued an order or execution against the person of J. A. Heath, and commanding the sheriff of that county to arrest J. A. Heath and commit him to the jail of the county until the judgment of Georgia J. and Anna R. Amos was paid, or Heath was otherwise discharged according to law. Under the order or execution the sheriff arrested Heath, and committed him to jail. On April 24, 1888, J. A. Heath filed a motion for his discharge from arrest and imprisonment: first, because of his inability to perform the act directed by the writs of execution against his person; and, second, because of his physical inability to endure imprisonment. This motion was heard by the district judge of Allen county, on the 1st day of May, 1888, and was then overruled. Heath excepted, and prosecuted proceedings in error in this court to reverse the order of the district judge of Allen county, in refusing to discharge him. The order of the district judge was recently affirmed in the case of Heath v. Brown, ante, p. 33. After that decision was filed, and on October 13, 1888, J. A. Heath commenced this proceeding in habeas corpus, to be discharged from imprisonment, and to be restored to his liberty. He contends that the execution against his person, upon the judgment rendered in favor of S. A. Brown & Company, is void, because it was issued upon the oath -- not affidavit -- of T. W. Phelps, agent. It is claimed that, as the affidavit is jurisdictional in its character, the whole proceeding is void, because the order recites "oath" in place of "affidavit," and because the oath was not made by the judgment creditor or creditors, or their attorney. As it sufficiently appears to us that the execution upon the judgment of S. A. Brown & Company against the person of J. A. Heath was only allowed by the district judge after the affidavit of T. W. Phelps had been made, and as this affidavit, together with the previous judgment, was the foundation of such execution, we cannot hold that the order or execution is void, because "oath" is recited in place of "affidavit." An "affidavit" is a written declaration under "oath." (Atchison v. Bartholow, 4 Kan. 124.) An "oath" is a declaration or promise made by calling on God to witness what is said. In the orders of the district judge the oath ...