McLeod v. McLeod

• Decision Date: 18 February 1907
• Citation: 88 Miss. 722,42 So. 873
• Court: Mississippi Supreme Court
• Parties: INEZ I. MCLEOD v. CLIFFORD C. MCLEOD

42 So. 873

88 Miss. 722

INEZ I. MCLEOD v. CLIFFORD C. MCLEOD

Supreme Court of Mississippi

February 18, 1907

April 1906

FROM the judgment of HON. MOYSE H. WILKINSON, circuit judge of the sixth district, sitting in vacation for the hearing of a writ of habeas corpus at Woodville, Wilkinson county.

Mr McLeod, the appellee, was plaintiff in the court below; Mrs McLeod, the appellant, was defendant there. From a judgment in plaintiff's favor the defendant appealed to the supreme court. The suit was begun by a petition for a writ of habeas corpus filed by Clifford C. McLeod, a resident of Wilkinson county, in the sixth judicial circuit court district, against his wife, to recover the custody of their child. Judge Wilkinson, of that district, caused the writ to be issued to the sheriff of Harrison county, in the second judicial circuit court district, where Mrs. McLeod had temporarily taken up her abode, and where the child was being held by her at the time of the institution of the proceedings. The writ was made returnable before Judge Wilkinson, who granted it, in Wilkinson county. At the hearing the defendant appeared and moved to dismiss the petition or transfer the cause to the judge or chancellor for the district in which Harrison county is situated. The motion was overruled and the case tried upon its merits and decided for the appellee.

Cause reversed and remanded.

Shannon & Jones, for appellant.

In the first place, we insist that the learned judge of the sixth district had no right to issue the writ or try the same. By Code 1892, § 2230, the application must be made to the judge or chancellor of the district where the relator is imprisoned, unless good cause be shown in the petition to the contrary.

If it be even insisted that there is so much as an attempt to assign a cause to the contrary, that cause cannot be found in the petition, unless it be referred to the convenience of witnesses--no cause whatever why the application was not made to the judge or chancellor of the district. Manifestly the cause applies to the application and that only. The learned judge could as easily issue a writ of Tishomingo county as to Harrison, and making it returnable to Wilkinson county. The convenience of witnesses does not make a cause why the application for a writ of habeas corpus should be made to any other judge than the one of the district where the person deprived of his liberty is.

The cause to the contrary, having reference as it does to the application only, must be a cause such as affects the application only, such as the absence of any judge from the proper district at the time, the interest of the judges of the district, or the urgent necessity for the immediate issuance and execution of the writ in cases where there might be danger of a prisoner being spirited away. We insist that everything about it shows a sort of careless indifference and inattention to the requirements of the law. There is not the scintilla of a pretense in the petition or record of an attempt to bring this case within the provisions of sec. 2235 of the code of 1892, under which the sheriff may be required to take charge of the person and bring him forthwith before the judge. Yet he is ordered to take this child into possession and bring it before the judge out of the sheriff's county about seven weeks after the issuance of the writ. A more careless indifference and rough-shod riding down of the law could scarcely be found, and it seems to have pursued the case to a finish.

Green &amp Green, on the same side.

The territorial limitation of the jurisdiction of judges of the circuit court cannot be challenged (Code 1906, § 689). He is "appointed for and from each district." The proposition involved is that the judge of the sixth circuit court district has no jurisdiction to try a case which arises in the second district. If, as contended by counsel, the habeas corpus chapter was silent as to where writs were returnable, then sec. 707 would require venue to be in the county where the defendant was found, and in State v. Oil Co., 79 Miss. 203 (s.c., 30 So. 609), the judgment of the circuit court, which held that a suit could not be impetrated under the trust and combine act in a district other than where the defendant resided, was affirmed.

The absence of authority of the judge to try the case, and the question of venue of the case, are both territorial limitations and cannot be violated. Ex parte Hickey, 4 Smed. & M., 759, was a case in which the circuit judge himself was interested, and hence the writ was made returnable before Justice THATCHER of the high court of errors and appeals in the courtroom at Jackson. The jurisdiction of the judges of the high court of errors and appeals and the statute (Hutchinson's Code, 791) expressly authorized the writ of habeas corpus to be made returnable to the supreme court, and hence the territorial limitation did not exist.

Bramlette & Tucker, and McWillie & Thompson, for appellee.

The merits of the case manifestly are with appellee and we pass to the mere matter of procedure so much, if not alone counted upon by appellant's counsel. Habeas corpus proceedings are sui generis and wholly depend upon statutes so far as concerns questions of jurisdiction and venue. We beg the court not to confuse matters of jurisdiction with matters of venue. Originally in Mississippi, the judges of the supreme court, the circuit court and the chancery court were authorized to grant writs of habeas corpus and to make them returnable immediately before themselves or the judge of any court of the state, at such time and place as the court or judge granting the writ might direct and appoint. Laws June 11, 1822; Hutchinson's Code, p. 199, § 1. It will be observed that there was no sort of limitation as to where the writs should be returnable, but the whole matter was left discretionary with the judges. See Code 1857, p. 365, § 1.

Every judge in the state had jurisdiction of a habeas corpus proceeding; no matter where in the state the defendant lived or where the crime was committed, he could hear it at any place he saw proper.

This being the law of the state, the legislature soon after the civil war passed an act empowering the jury in capital cases to determine whether the prisoner, if convicted, should suffer death or be imprisoned in the penitentiary for life. The constitution provided that bail should be granted as a matter of right in all cases except capital cases in which the proof was positive or the presumption great. Under this condition of the law, statutory and constitutional, the late Judge James M. Smylie, one of the most upright, honorable and able of all of our circuit judges, held that no case was necessarily a capital one, and therefore all criminal cases were bailable. In fact, this court so held at one time. See reference to Ex Parte Bonelli in Judge Chalmers' opinion in Ex Parte Fortenberry, 53 Miss. 428. It is true that the supreme court afterwards decided contrary to Judge Smylie's view on this question of bail, but while Judge Smylie alone of the judges was granting bail to everybody, and before the supreme court decided to the contrary, prisoners charged with murder in all parts of the state applied to him for bail, although he was the judge of the southwestern district. Many cases came to him from distant parts of the state.

The history thus related caused a change by the legislature in the law on the subject of habeas corpus. The act of 1876, Laws 1876, p. 21, first introduced the change. It provided that a writ of habeas corpus should be made returnable at the county seat of the county where the offense was alleged to have been committed. A previous statute, however (Code 1871, § 1400), had provided that the application should be presented to the judge or chancellor of the district in which the relator is imprisoned unless good cause shall be shown in the petition for the contrary. Both statutes relate only to criminal cases. The relator now before the court is not imprisoned, and, in fact, no feature of the law introduced by § 1400, Code 1871, has application to this case. The code section relates only to criminal cases, and was intended to prevent parties charged with crime from applying to judges believed to be liberal in granting bail away from the place where the crime was committed. It was not jurisdictional, but merely directory. These changes in the law have been brought forward from time to time and are now a part of the present code. Not one of them relates to suits for the custody of children. Even in respect to criminal cases the provision that habeas corpus writs shall be returnable within the county where the crime was committed is merely directory and not jurisdictional. Patterson v. State, 71 Miss. 675 (s.c., 15 So. 794). Surely if the provision touching the place of trial of one charged with crime when he sues out a writ of habeus corpus is but directory and not jurisdictional every other provision relating to the place of hearing in the chapter on habeus corpus must be held to be directory and not jurisdictional.

Nothing was further from the ideas of the great men and statesmen who originated and conferred upon the citizen the right of habeas corpus than to have that right limited by technical legislative rules on the subject of the place where the citizen unjustly imprisoned could be heard. There was no limitation at all in the original habeas corpus...