In re Petition of Milburn for a Habeas Corpus

• Decision Date: 11 December 1883
• Citation: 59 Wis. 24,17 N.W. 965
• Parties: IN RE THE PETITION OF MILBURN FOR A WRIT OF HABEAS CORPUS, ETC.
• Court: Wisconsin Supreme Court

59 Wis. 24

17 N.W. 965

IN RE THE PETITION OF MILBURN FOR A WRIT OF HABEAS CORPUS, ETC.

Supreme Court of Wisconsin.

Filed December 11, 1883.

The writ of habeas corpus is directed to Robert Scott, sheriff of the county of La Crosse, in the state of Wisconsin. It appears from the return to the writ, in effect, that the petitioner is restrained of his liberty under and by virtue of a warrant of commitment made May 12, 1883, by Hon. Alfred W. Newman, as judge of the circuit court for Trempealeau county, committing the said petitioner to the common jail of Trempealeau county as for a contempt, and also an order made by the said judge thereon ordering that such sentence and imprisonment be executed in the common jail of La Crosse county, for the reasons therein given, the substance of which warrant is stated in the opinion.G. Y. Freeman, for petitioner, William Milburn.

Gregory & Gregory, for sheriff.

CASSODAY, J.

1. When the prisoner conceives that the return to the writ of habeas corpus issued upon his petition does not set forth truly or fully, and at large, the authority and cause of his imprisonment, as required by section 3420, Rev. St., it becomes necessary for him to deny such of the material facts set forth in the return as he deems untrue, and to allege any fact showing, either that his imprisonment or detention is unlawful, or that he is entitled to his discharge; and the issue thus formed by such traverse, verified by the oath of the prisoner, may thereupon be heard, tried, and determined in a summary way, and thus the real facts, and the true cause and authority of such imprisonment, be ascertained. Section 3425, Rev. St. In this case no such traverse was made, but it was insisted that the prisoner should be discharged upon the return. In other words, the prisoner's counsel, in effect, demurred to the return. Such being the state of the case, the return to the writ must be accepted as a verity.

2. It appears from the return that the prisoner is held by virtue of a legal process, issued by the judge of the circuit court of the sixth judicial circuit. Such being the nature of the process and authority for the imprisonment, the writ of habeas corpus only raises the question of the jurisdiction of that officer to issue the process of arrest. In re Eldred, 46 Wis. 530; [S. C. 1 N. W. REP. 175.] Certainly, the writ does not perform the office of a writ of error or appeal, and cannot be resorted to for the purpose of reviewing and correcting orders and judgments which are erroneous merely. It deals with more radical defects, which go to the jurisdiction of the court or officer, and which render the proceeding or judgment void. Petition of Blair, 4 Wis. 523;Petition of Crandall, 34 Wis. 177.

3. Does the warrant by which the prisoner is held in custody fail to show jurisdiction in the circuit judge to issue it? It appears from the warrant that a receiver had been duly appointed in proceedings supplementary to judgments and executions in the cause of Silas E. Houghton, plaintiff, against William Milburn, (the petitioner,) and Caroline S., his wife, defendants, and that the said defendants had not complied with an order duly made by said circuit judge, February 8, 1883, and an order supplementary thereto made by him, May 8, 1883, for the delivery to said receiver of $170 in money, and two certain promissory notes, found in the possession of the petitioner, and owned by him February 8, 1883, to be applied towards the satisfaction of the judgments in said cause in the circuit court of Trempealeau county, and also that said defendants had refused to pay, as ordered, the costs of the supplementary proceedings, taxed by said judge at $30. It also appears from the warrant that the petitioner and his wife were duly notified to show cause before said officer, as such judge, May 12, 1883, why they should not be punished for their alleged misconduct in disobeying said orders; and not having shown good cause therefor, or having made any defense to the same, nor complied with the terms of said order, and it appearing that the wife of the petitioner had disclosed no property in her possession or under her control aside from her husband, and the circuit judge having adjudged the said William Milburn in contempt for not obeying said orders, and having ordered him to be closely imprisoned till he should deliver over to the receiver the money and two notes and the $30 costs, and the further sum of $30 in the aggregate of costs, disbursements, and expenses of such contempt proceedings, together with the fees of the sheriff taking the petitioner into custody on the warrant, and such costs and expenses as the law provided for the commitment of the petitioner under the warrant, and it further appearing from the warrant that the petitioner having failed to do any of the acts so ordered, the said warrant was thereupon issued May 12, 1883, and the petitioner taken into custody thereon; and it appeared from the return that since that time he has been held in imprisonment by virtue of the said warrant. The petitioner, in the supplementary proceedings, having disclosed the fact that he had in his possession the money and notes in question, and the same not being exempt from execution, the judge was expressly authorized by statute to order him to pay over and deliver the same to the receiver, to apply towards the satisfaction of the judgment, and to forbid the transfer or other disposition of such property. Sections 3035, 3036, Rev. St.

The statute also provides that if any party shall disobey an order of the judge duly served, he may be punished by the judge as for a contempt. Section 3037, Rev. St. Here we must assume that the order to pay and deliver over was duly served, and that the petitioner still had the money and notes in his possession, and hence that the disobedience was willful; for if any of these things were not so, the petitioner should have made it to appear when he was ordered to show cause before the judge, May 12, 1883; but instead of doing so, according to the only record of which we have any right to consider, he wholly failed to show any good cause for such disobedience, and made no defense, and furnished no excuse for the non-compliance with that order. The petitioner is in no position to urge that he did show cause, and did make it appear to the judge that he was unable to comply with the order. As already suggested, having failed to traverse the return, and having rested his case upon the recitals in the warrant, he has thereby precluded himself from now urging that any of such recitals are untrue. Besides, the section of the statute authorizing the commitment provides that in all cases of such commitment the person committed may, in case of inability to perform the act required, or to endure the imprisonment, be discharged by the judge committing him, or the court in which the judgment was rendered, on such terms as may be just. Section 3037, Rev. St. Had the petitioner shown such inability, he would, we apprehend, have been discharged, as provided in that section, instead of being committed. Thus, it appears from the warrant of commitment that the prisoner is detained in custody for a contempt specially and plainly charged in the commitment of an officer having authority to commit him for the contempt so charged, and hence this court is expressly commanded by the statute to make a final order to remand the prisoner. Section 3427, Rev. St.

4. But the invalidity of these statutes, thus authorizing such imprisonment for such contempts, is strenuously urged by counsel. They are said to be an attempt by the legislature to do by indirection what is expressly forbidden by the constitution in these words: “No person shall be imprisoned for debt arising out of or founded on a contract, expressed or implied.” Section 16, art. 1. It is said that the judgment mentioned was for a debt founded on a contract. That does not expressly appear from the warrant, but we assume it is true. This being so, it is urged that the judgment is a debt arising out of a contract. Being a debt, it is claimed that imprisoning the defendant for refusing to pay over the money and deliver up the notes in his possession to the receiver, as ordered, is to imprison for a debt arising out of...