People ex rel. Burchinell v. District Court of Arapahoe County

Decision Date20 April 1896
Citation45 P. 402,22 Colo. 422
CourtColorado 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: 'State of Colorado, County of Arapahoe--ss.: In the County Court. The People of the State of Colorado to the Sheriff of Arapahoe County--Greeting Whereas, at the May term, A. D. 1895, of the county court of Arapahoe county, Colorado, to wit, on the 19th day of June A. D. 1895, I. Rothschilds and J. H. Woolf, doing business as I. Rothschilds & Co., plaintiffs, recovered a judgment against W. V. Kaufman and F. H. Murray, doing business as Kaufman & Murray, defendants, for the sum of four hundred and seventy-eight dollars and seventy-nine cents ($478.79) damage by the plaintiffs in that behalf sustained, and also the further sum of eight dollars and twenty-five cents ($8.25), which was adjudged to said plaintiffs for their costs and charges in that behalf expended, together with interest on said judgment from the date of the recovery thereof until the same is paid at the rate of eight per cent. per annum; and whereas, it was found by our said court that said action was founded upon a tort, and that the defendants, in committing the tort complained of, were guilty of fraud and willful deceit, and it was then and there adjudged and ordered that said defendants, W. V. Kaufman and F. H. Murray, be committed to and confined in the common jail of Araphoe county for the term of thirty (30) days, on writ of execution against their bodies: These are therefore to command you that you take the said W. V. Kaufman and F. H. Murray, the defendants, if they may be found in your county, and them safely keep in the common jail of Arapahoe county for the term of thirty days, so that during the whole of said term you have their bodies in accordance with the terms of said judgment, unless said judgment be sooner paid, as hereon indorsed. And have you this writ with you returned, indorsed thereon in what manner you shall have executed the same, in ninety (90) days from the date hereof. Witness Elias J. Dunlevy, clerk of said court, and the seal thereof, at Denver, in said county, this 24th day of June, 1895. Elias J. Dunlevy, Clerk, by Mrs. E. Gartland, Deputy.' 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 inspection of the record as certified,...

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