In re Stokes

• Decision Date: 17 February 1874
• Citation: 5 S.C. 71
• Parties: In Re. STOKES.
• Court: South Carolina Supreme Court

5 S.C. 71

In Re. STOKES.

Supreme Court of South Carolina.

Feb. 17, 1874.

Where a party is committed for contempt by a Court of record having jurisdiction of the subject-matter and the party, for irregularity in the proceedings, or error of judgment, habeas corpus is not the remedy. Relief must be sought by appeal.

This was a writ of habeas corpus, directed to the Sheriff of Greenville County, commanding him to have the body of Edward F. Stokes, with the day and cause of his caption and detention, before the Supreme Court. The Sheriff made return to the writ, and submitted as the cause of caption and detention a warrant, signed by the Judge of the 8th Circuit, in words and figures as follows:

“STATE OF SOUTH CAROLINA, GREENVILLE COUNTY.

In Circuit Court.

“R. H. Earle, plaintiff, against Edward F. Stokes, defendant.

A notice having been made by the Court on the 25th day of July, A. D. 1872, that the defendant herein should appear before this Court and answer such questions as may be propounded to him, touching his property, and the said defendant refusing to be so sworn and answer, it is ordered that he be held by the Sheriff in close confinement until such time as he shall make such answer.

“T. H. COOKE.

“September 12, 1873.”

Upon the motion for discharge the petitioner submitted his own affidavit, wherein he set forth certain supposed irregularities in the proceedings before the Circuit Court, and stated that he had taken an appeal from the orders of the Judge. It seemed, from the affidavit, that the proceedings in the Circuit Court were supplementary to an execution of R. H. Earle against the petitioner.

The opinion of the Court was delivered by

MOSES, C. J.

If any irregularities exist in the course of the proceeding under which the petitioner was committed, or if the conclusion of the presiding Judge, which resulted in the order of attachment, was erroneous, they are to be corrected by the appeal now pending, or which may be hereafter taken. Any anticipation of the judgment which may follow their hearing in the regular course, it is proper should now be carefully avoided.

The order of the 25th July, 1872, in the case of R. H. Earle, against this petitioner, appears to have been the origin of all the succeeding orders which were made, or, at least, of the one under which the applicant was committed. It was intended as the inception of what is termed in the Code of Procedure ““proceedings supplementary to the execution,” (Gen....