McLaughlin v. Etchison
| Decision Date | 31 March 1891 |
| Docket Number | 16,072 |
| Citation | 27 N.E. 152,127 Ind. 474 |
| Parties | McLaughlin v. Etchison |
| Court | Indiana Supreme Court |
From the Madison Circuit Court.
Judgment affirmed, with costs.
S. A Forkner, for appellant.
This was a petition for a writ of habeas corpus by the appellant, who alleged that he was unlawfully restrained of his liberty by the appellee, the sheriff of Madison county. A writ was awarded, but on motion of the appellee was quashed. This action of the court is assigned as error.
From the petition the following facts are gathered: On the 19th day of February, 1891, an affidavit was filed with Benjamin McCarty, a justice of the peace of Madison county, which was evidently drawn under section 2066, R. S. 1881, charging, or attempting to charge, appellant and another with the erection and maintenance of a public nuisance. On this affidavit a warrant was issued, appellant was arrested and brought before said justice, when he was, on the 20th day of February, 1891 tried and adjudged guilty, and a fine of $ 10 and costs assessed against him, with an order that he stand committed until the fine should be paid or replevied. He was allowed to go until the 4th day of March, 1891, when the fine not being paid or replevied, a mittimus was issued by the justice, and he was committed to the common jail of Madison county.
His conviction was clearly erroneous. The affidavit upon which the prosecution was based did not charge a public offence. It is not necessary to point out its defects further than to say that it at most charges an interference with the free use by Fraly of his property by the erection of what is styled a "high and useless fence." The facts, properly pleaded in a civil suit, might entitle the party to damages and to the abatement of the nuisance.
Notwithstanding the judgment of conviction was erroneous it was not void. The justice had jurisdiction of the subject-matter; that is, he had jurisdiction to hear and determine a charge, under section 2066, R. S. 1881, of the erection or maintenance of a public nuisance. He also had jurisdiction of the person of the appellant, and the judgment rendered by him can not be attacked collaterally.
The writ of habeas corpus can not be used for the mere correction of errors. To be entitled to the writ in a case like this the party complaining must show a void judgment. A judgment that is merely erroneous, no matter how gross the error, will not suffice. Willis v. Bayles, 105 Ind. 363, 5 N.E. 8; Cooley Const. Lim., marginal p. 348; Lowery v. Howard, 103 Ind. 440, 3 N.E. 124; Holderman v. Thompson, 105 Ind. 112, 5 N.E 175; Commonwealth, ex rel., v. Leckey, 26 Am. Dec. 37, and note; 9 Am. & Eng. Encyc. of Law, p. 227, and cases cited; Ex parte Watkins, 3 Peters, 193.
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...upon this statute by our court to limit and suspend a defendant's right to habeas corpus seems to have begun with McLaughlin v. Etchison, 1891, 127 Ind. 474, 476, 27 N.E. 152. It was thereafter relied upon rather frequently, as evidenced, among others, by the cases following: Webber v. Hard......
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