People ex rel. Burchinell v. District Court of Arapahoe County
Decision Date | 20 April 1896 |
Citation | 45 P. 402,22 Colo. 422 |
Parties | PEOPLE ex rel. BURCHINELL, Sheriff, v. DISTRICT COURT OF ARAPAHOE COUNTY et al. |
Court | Colorado Supreme Court |
Certiorari to district court, Arapahoe county.
Petition by W. V. Kaufman for a writ of habeas corpus, on the ground that he was unlawfully detained by virtue of an execution against the body. After a judgment discharging the petitioner, W. K. Burchinell, sheriff, applied for a writ of certiorari to remove the proceedings had upon habeas corpus. Judgment of dismissal annulled.
From the record certified to us, it appears that on July 3, 1895 W. V. Kaufman filed in the district court of Arapahoe county his petition for a writ of habeas corpus, wherein it is alleged: That he was unjustly and unlawfully detained and imprisoned by the sheriff of Arapahoe county, in the common jail at Denver, by virtue of an alleged warrant or execution against the body, which warrant or execution is in words and figures following: That the illegality of said imprisonment consists in this, to wit: that said judgment of the 19th of June, 1895, was wholly illegal and void, for the reason that a judgment for the same amount, for the same item, and for the same cause of action, had theretofore been rendered in the same court, by the same judge, on June 5, 1895. That there is no sufficient allegation in the complaint, summons, or finding of the court of any tort, fraud, or willful deceit to authorize the execution against the body, under and by virtue of the laws of Colorado. That the summons served in the action was delivered by petitioner to his attorney, for the purpose of having his defense prepared and presented to the court, but that, in fact, no answer was filed in the action. The writ was issued as prayed for, directed to the sheriff, returnable forthwith. On July 5, 1895, respondent filed his motion to quash the writ for various reasons, which was overruled. On July 9, 1895, the respondent filed his return, wherein, inter alia, he alleged that he held the petitioner under and by virtue and in pursuance of a writ duly issued out of the county court of Arapahoe county, a true copy of which was set forth in the petition; that the same was issued upon a judgment duly rendered by the county court in an action brought by I. Rothschilds & Co. against W. V. Kaufman and one F. H. Murray, as co-partners, under the firm name of Kaufman & Murray; that the amount claimed in said action did not exceed the sum of $2,000; that due and legal service of summons was had. To this return an answer was filed, averring that the warrant was based upon an illegal judgment, for the reasons set forth in the petition; second, because the process, although in proper form, was issued in a form and under circumstances in which the law does not allow process or orders for imprisonment, for the reason that said judgment is based upon a cause of action founded on a contract, and not upon tort. The cause coming on to be heard upon this petition, return, and answer, the court discharged the petitioner, and entered judgment against respondent for costs.
J. N. Baxter and J. C. Fitnam, for relator.
George Simmonds, for respondents.
Upon this review, we are limited to the inquiry whether the district court exceeded its jurisdiction, or greatly abused its discretion, in the matter of the discharge of petitioner Kaufman, or whether it regularly pursued the authority conferred by the habeas corpus act (Code Civ. Proc. 1887, §§ 297, 303); and these questions are to be determined from an...
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