Rhodes v. Glenn

• Court: Georgia Court of Appeals
• Citation: Rhodes v. Glenn, 24 S.E.2d 721, 69 Ga.App. 163 (Ga. App. 1943)
• Decision Date: 20 February 1943
• Docket Number: 29806.
• Parties: RHODES v. GLENN.

24 S.E.2d 721

69 Ga.App. 163

RHODES v. GLENN.

No. 29806.

Court of Appeals of Georgia, Division No. 2.

February 20, 1943

Rehearing Denied March 19, 1943.

Syllabus by the Court.

George Rhodes sued Levy H. Glenn to recover a $2,500 penalty for failure to grant a writ of habeas corpus on plaintiff's application. The petition alleged: "1. Your petitioner is illegally restrained of his liberty, by being confined in the common jail of said county. 2. The person restraining the liberty of your petitioner is Lonnie Pearce, the sheriff and jailer of said county. The cause or pretense of said restraint by the said defendant is under and by virtue of an order granted by his honor O. T. Gower, judge of the superior court of the Cordele judicial circuit. Said order being as follows, to wit: 'Georgia, Wilcox County. The grand jury of Wilcox County, Georgia, at the present term just being recessed until the further order of the court having so recommended, it is considered, ordered and adjudged that George Rhodes and Sam Rhodes each and both execute a bond to keep the peace as to the persons, families and properties of C. W. Gillespie and G. W. Harrell, in the amount of five hundred dollars each. It is ordered that the sheriff of Wilcox County is hereby directed to take both of the above-named parties into his custody and to keep them in his custody until the above-described peace bonds have been executed by the said above-named parties and said bonds have been approved by the clerk of this court. This order is drawn immediately upon the recommendation of the grand jury and is expressly held open for such other further amendment or addition as may be deemed advisable by the court at a later date. ***' 3. Petitioner avers that said order or process hereinbefore recited is illegal and void for the following reasons to wit: (a) Said judge had no jurisdiction to pass said order. (b) Because said order was ex parte and based solely on the recommendation of the grand jury. (c) Said order is void because the court had no jurisdiction of this defendant [plaintiff at the time the same was passed. (d) Because said order is void in that it violates the constitutional provision of the State of Georgia, to wit: article 1, paragraph 1, section 3 as follows, to wit: 'No person shall be deprived of life, liberty, or property, except by due process of law.' (e) Because said order violates the constitution of the United States amendment 14. It reads as follows, to wit: 'No State shall *** deprive any person of life, liberty, or property without due process of law.' In that said order was passed by the court ex parte and without any notice to petitioner and without any hearing, and without an opportunity to make any defense and without any warrant having issued and without any arrest of petitioner. (f) Petitioner avers that said order by said judge was viod ab initio and being void gives to said defendant no right to restrain petitioner of his liberty. Wherefore, petitioner avers that his further restraint is illegal and prays your honor to issue said writ of habeas corpus direct to Lonnie Pearce, sheriff as aforesaid, requiring him to bring your petitioner before your honor, at the time and place to be specified in the writ, for the purpose of examination into the cause of the detention. *** Personally comes George Rhodes who being duly sworn deposes and says that the allegations contained in the foregoing petition for the writ of habeas corpus are true. ***"

The defendant demurred to the petition as follows: "1. Said petition sets forth no cause of action. 2. The penalty exacted under the statute on which plaintiff's cause is based does not apply, as against this defendant, an ordinary. 3. The statute on which plaintiff's cause...