Posvar v. McPherson

• Decision Date: 01 March 1927
• Docket Number: 1383
• Citation: 36 Wyo. 159,253 P. 667
• Parties: POSVAR v. McPHERSON, Sheriff. [*]
• Court: Wyoming Supreme Court

253 P. 667

36 Wyo. 159

POSVAR v. McPHERSON, Sheriff. ^[*]

No. 1383

Supreme Court of Wyoming

March 1, 1927

ERROR to District Court, Natrona County; BRYANT S. CROMER, Judge.

Application by George W. K. Posvar for a writ of habeas corpus against Alexander McPherson, as Sheriff, of Natrona County. From an order denying the application, petitioner brings error.

George W. K. Posvar, pro se.

The Justice of the Peace had no jurisdiction to commit for contempt; no order of commitment was issued; the proceedings were in defiance of the Federal and State Constitutions petitioner violated no law; the following authorities apply 93 U.S. 18; 23 L.Ed. 787; 2 Hale, H. P. C. 144; Ex Parte Kearney, 7 Wheat. 38; Ex Parte Wells, 18 How 307; Ex Parte Rolland, 104 U.S. 805; Re: Harrison 110 S.W. 109; Ex Parte Meet, 157 Mo. 527; Ex Parte Lucas, (Mo.) 61 S.W. 218; Kingen v. Kelley, Sheriff, 3 Wyo. 566; Hovey v. Sheffner, Sheriff, 16 Wyo. 254. The fact that an appeal might be taken, in the principal action, will not prevent granting relief by habeas corpus; Ex Parte Farrell, 36 Mont. 254; Smith v. State, 38 N.W. 594.

POTTER, Justice. BLUME, Ch. J., and KIMBALL, J., concur.

OPINION

POTTER, Justice.

This is a proceeding in error complaining of an order of the district court in Natrona County disallowing an application for a writ of habeas corpus presented to that court or the judge thereof by the plaintiff in error, appearing in his own proper person, for the purpose of securing his release from alleged imprisonment in the county jail under a warrant of commitment for contempt by a justice of the peace of that county. The contempt proceedings appear to have occurred during the pendency of a replevin action commenced by the plaintiff in error in the court of said justice of the peace; and the warrant of commitment recites the facts leading thereto and upon which any question respecting its legality would have to be determined.

It appears from said recital of facts that on February 19, 1925, the plaintiff caused said justice of the peace to issue a replevin writ for certain personal property and a summons duly commencing the action; the affidavit and undertaking required by law to obtain the writ having been duly filed; the property was delivered to the plaintiff, supposedly by the officer executing the writ. That on the next day, following a delivery of the property to the plaintiff, the defendant gave a redelivery bond, which was approved by the justice on that date; and the defendant also, at that time, excepted to the sufficiency of plaintiff's bond. It is then stated that plaintiff "being advised of this, and ordered by the court to return the property * * * * to the defendant, and failing to do so," the court cited him to appear on February 23 to show cause why he should not be adjudged in contempt. That on his said appearance at that time he was duly sworn and asked to state where the replevied property was, to which he replied that he did not know, and that he gave no answer stating the location of the property, but answered "in an insolent and contemptuous manner, tending to interrupt the proceedings and impair the respect due the court."

Then it appears further from the warrant that, having so refused to divulge the location of the property, he was adjudged in contempt and fined twenty dollars and sentenced to two days in the county jail, and was also adjudged in contempt as a result of his insolent behavior by his sarcastic and flippant answers and fined twenty dollars for that and sentenced to the jail for two days. It further appears therefrom that, under Section 6581, Wyo. Comp. Stat. 1920, for his failure to disclose the location of the replevied property, the writ commanded that the sheriff safely keep him "until he discloses where said property is, * * * * there to remain until he shall be discharged by due course of law."

The warrant was dated February 24, 1925 and addressed to the sheriff as keeper of the county jail, who endorsed a certificate thereon that he served the warrant by arresting the party named therein and had him confined in the jail. The habeas corpus writ seems to have been dated also on that date and the hearing appears to have been had on the next day (February 25). And it appears that it was heard in open court and disallowed on that date, and that the disallowance was upon the ground that the warrant was regular upon its face and appeared to have been issued by a court having jurisdiction of the subject matter of the action and the person of the plaintiff.

There can be no doubt that the justice of the peace had jurisdiction of the replevin action, but whether his jurisdiction was complete in the contempt proceeding as to each of the stated causes for which the plaintiff was adjudged in contempt, need not be decided, for we find that the case can be disposed of upon other and satisfactory grounds. So far as the warrant commanded the retention of the prisoner until he should disclose where the replevied property was located as provided in Section 6581, Comp. Stat. 1920, it was without jurisdiction. For that section does not apply to a plaintiff in a replevin action before a justice of the peace. We shall not attempt a full discussion of the question, for we think it entirely clear upon even a casual reading of the provisions of the replevin chapter of the justices' code as originally enacted and as amended.

That section provides that when it shall be made to appear to the satisfaction of the justice by the affidavit of the plaintiff or otherwise, "that the defendant, or any other person knowingly conceals the property sought to be recovered, or having control thereof, refuses to deliver the same to the officer, the justice may commit such defendant, or other persons, until he or they disclose where such property is, or deliver the same to the officer, unless such defendant shall give a bond or undertaking to the plaintiff as required by law." We think this clearly discloses upon its face that it refers only to a failure of the defendant or some person in his behalf, to make the disclosure; since the plaintiff will already have given a bond, and this plaintiff had given the bond provided for by law, which entitled him to have the property delivered to him by the officer unless, as provided in Section 6571, the defendant shall give a bond or undertaking to the plaintiff to...