Jensen v. Sevy

• Decision Date: 05 March 1943
• Docket Number: 6540
• Citation: 103 Utah 220,134 P.2d 1081
• Court: Utah Supreme Court
• Parties: JENSEN v. SEVY

134 P.2d 1081

103 Utah 220

JENSEN v. SEVY

No. 6540

Supreme Court of Utah

March 5, 1943

Original proceeding by Fern Jensen against Hon. John L. Sevy Jr., Judge of the District Court of the Sixth Judicial District of the State of Utah, in and for Sevier County Utah, for writ of mandamus to compel defendant to hold a hearing on a writ of habeas corpus involving the custody of a child.

Alternative writ recalled and quashed.

Cline & Cline, of Milford, for plaintiff.

N. J. Bates, of Richfield, for defendant.

LARSON, Justice. MOFFAT, J., concurs. WOLFE, Chief Justice, HOYT, District Judge, McDONOUGH, Justice, concurring in the result.

OPINION

LARSON, Justice.

Application for writ of mandamus to compel Hon. John L. Sevy, Jr., Judge of the District Court of Sevier County, to hold a hearing on a writ of habeas corpus. This court issued an alternative writ directing defendant to hold such hearing, or to show cause before this court why he did not do so. Defendant did not hold such hearing, but filed an answer joining issue to show cause and justify. The issues involved will appear from the following statement of facts:

In July, 1940, the Juvenile Court of the Sixth Judicial District, with the consent of Fern Jensen, the plaintiff herein, made and entered an order, declaring Maxine Jensen, minor daughter of plaintiff, a ward of the Juvenile Court, and placing her for part of the year with her paternal grandparents and part of the year, with her maternal grandparents. The mother of the child was dead. This order was based upon a finding that the father was not a proper person to have the custody. In July, 1941, the father, Fern Jensen, hereinafter called plaintiff, who had remarried, petitioned the Juvenile Court to modify the aforesaid order and give him the custody of his child. At the hearing on this petition the Juvenile Court entered an order, out of which this action grows, vacating all previous orders and providing:

"That the Court retains jurisdiction of this matter * * * and in the event said petitioner, Fern Jensen, deports himself becomingly between the date hereof and June 1, 1942, then and in the event said petitioner, Fern Jensen, shall have and enjoy the sole custody of said minor child. * * *"

From such order plaintiff appealed to this court, which appeal is now pending. After June 1, 1942, plaintiff demanded his child from its maternal grandparents, the Sorensens, and his demand being refused, he applied to this court for a writ of habeas corpus directed against the Sorensens. This court issued the writ of habeas corpus, and made the writ returnable before the District Court of Sevier County. When the writ of habeas corpus came before that court, defendants therein, as a return to the writ filed what was denominated as, and in the form of, a general demurrer, merely setting up that "the petition does not state facts sufficient to justify the granting of the relief prayed for." It appears no hearing was had except an argument on the demurrer, when the District Judge, Hon. John L. Sevy, Jr., defendant in this proceeding, and hereinafter called respondent, dismissed the writ in an order as follows:

"The Court finds and concludes as matter of law that it has no jurisdiction or authority to hear or consider said Writ of Habeas Corpus or to make any determination therein with reference to the custody of said child, and that the petition does not state facts sufficient to authorize the issuance of said Writ.

"For the foregoing reasons it is now ordered that said Writ be and the same is hereby dismissed and the Defendants, together with said child, Maxine Jensen, is permitted to go hence without date."

Thereupon plaintiff applied to this court for the writ of mandamus upon which this action is predicated. For convenience the father will hereafter be referred to as plaintiff; the defendant herein as the respondent; and the defendants in the habeas corpus as the grandparents. The following questions are before us:

1. Does a demurrer lie to a writ of habeas corpus, or to the petition for the writ after the writ has been issued?

2. If a demurrer does not lie, and one is filed, may it be considered as an answer and return admitting all the allegation of the petition, and a submission of the issue as to the legality of the restraint upon the allegations of the petition as an agreed statement of the facts?

3. Is mandamus a proper remedy in this cause, or should plaintiff be required to proceed by appeal?

4. If either 1 or 2 be answered in the affirmative, did the District Court err in holding the facts as stated in the petition were not sufficient to entitle plaintiff to any relief?

5. Is the jurisdiction of the Juvenile Court over minors so exclusive as to divest the Supreme Court, or the District Courts of jurisdiction, to inquire by habeas corpus, into the legality of the restraint of a ward of the Juvenile Court, exercised by any person, either under an order of the Juvenile Court or otherwise?

We will examine them seriatim:

1. The written law with respect to habeas corpus in this state is found in Article 8 of the State Constitution, and in Chap. 65 of Title 104, R. S. U. 1933, as construed by this court in prior cases. The statute prescribes the contents of the petition for the writ (Sec. 104-65-1); that the writ must issue, "unless it shall appear from the petition itself, or the documents annexed, or the showing of the plaintiff, that the party so applying would not be entitled to any relief." (Sec. 104-65-3). If the court or judge thereof disallows and refuses to issue the writ, he must cause a written statement of his reasons for so doing to be appended to the petition and the same returned to petitioner. See Sec. 104-65-9. The next section (104-65-10) declares that it shall be the duty of a court or judge to issue the writ, though no application is made therefor where he shall have evidence that any person within his jurisdiction is unjustly restrained of his liberty. Sec. 104-65-17 states that any judge who wrongfully and wilfully refuses to allow a writ when proper application has been made shall forfeit to the aggrieved party, $ 5,000. The writ is to be served upon the person named therein as defendant, or upon any other person having the plaintiff in custody with the same effect as if he had been named defendant. (Secs. 104-65-12 and 13). Then Sec. 104-65-15 provides:

"* * * Service being made, the defendant must appear at the proper time and place and answer the complaint. He must also bring the body of the plaintiff, or show good cause for not doing so." (Italics added.)

Sec. 104-65-20 reads:

"Upon the return of any writ of habeas corpus the court or judge shall, after having given sufficient notice, proceed in a summary manner to hear the matter, and shall dispose of the prisoner as justice may require." (Italics added.)

The statute therefore indicates that the writ must issue whenever it shall come to the attention of the court or judge that there is evidence that anyone within his jurisdiction is unjustly deprived of his liberty, whether that be made to appear by proper application or otherwise. The application for the writ is merely an approved way of calling the situation to the attention of the court or judge. In other words, a verified petition embracing the matters set out in Sec. 104-65-1, and which upon its face does not show the petitioner not entitled to relief, imposes upon the court the obligation and duty to issue the writ unless he has reason to doubt the verity of the petition. 25 Am. Jur. p. 238; Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281; Ex parte Hyde, C. C., 194 F. 207; In re Lewis, C. C., 114 F. 963; Graves Case, 236 Mass. 493, 128 N.E. 867.

"If in doubt, the court grants the writ and disposes of the cause on the return day, when the prisoner is brought before him." In re Taylor, 23 Fed. Cas. page 728, 729, No. 13,774, 8 N.Y. Wkly. Dig. 554.

"We know of no law which authorizes either the person against whom the writ is prayed, or any one else, to come into court and object to the issuance of the writ. There is no precedent for an objection of this character. It is a matter to be determined solely by the judge." Simmons v. Georgia Iron, etc., Co., 117 Ga. 305, 311, 43 S.E. 780, 783, 61 L. R. A. 739 (quote Addis v. Applegate, 171 Iowa 150, 154 N.W. 168, 173, Ann. Cas. 1917E, 332).

Electoral College Case, 8 Fed. Cas. page 427, No. 4,336, 1 Hughes 571; Ex parte Dessus, 9 Porto Rico 128.

"Doubtless there is an obligation to issue the writ of habeas corpus whenever, and as often as, it may be applied for, provided the petition contains the requisite matter, is in due form, duly authenticated, duly presenced, and does not show on its face that the imprisonment, though complained of as illegal, is in fact legal." Perry v. McLendon, 62 Ga. 598, 604 (per Bleckley, J.).

"It is the duty of the court or judge to whom the application is presented, before issuing the writ, to inspect the application to see if it contains sufficient averments, is in due form of law, and properly subscribed. If it does not, he should refuse to issue the writ. If it does, it is his duty to grant it." Addis v. Applegate, 171 Iowa 150, 163, 154 N.W. 168, 173, Ann. Cas. 1917E, 332.

The writ should be promptly issued "in behalf of an injured party, when a proper case is presented." In re Keeler, 14 Fed. Cas. page 173, No. 7,637, Hemp. 306.

The petition is not a complaint, and does not initiate a proceeding in habeas corpus. Its function is to advise the judge that someone probably is unlawfully or wrongfully detained or restrained of his liberty, to secure the issuance of the writ, and when that is issued the petition has accomplished its purpose;--it is functus...