Scott v. Spiegel

• Citation: 35 A. 262,67 Conn. 349
• Court: Connecticut Supreme Court
• Decision Date: 21 February 1896
• Parties: SCOTT v. SPIEGEL, Sheriff.

35 A. 262

67 Conn. 349

SCOTT

v. SPIEGEL, Sheriff.

Supreme Court of Errors of Connecticut.

Feb. 21, 1896.

Appeal from superior court New Haven county; George W. Wheeler, Judge.

Petition for a writ of habeas corpus by Walter Scott against Charles R. Spiegel, sheriff. There was a judgment for respondent and petitioner appeals. No error.

Lucien F. Burpee and Cornelius J. Danaher, for appellant.

E. P. Arvine and Charles H. Sawyer, for appellee.

ANDREWS, C. J. The superior court made certain findings of fact, to which exception is made by the plaintiff. The evidence upon which these findings were made is certified up in the record. As these were questions of pure fact, depending upon the consideration of evidence, we do not understand it is within our power to revise or change them. If, however, it was open to this court to do so, we should be of opinion that the evidence was sufficient to support the conclusions. We agree with the superior court that the only questions properly in the case were such as were presented by the plaintiff's answer to the defendant's return. In the first volume of Swift's Digest (side page 569), it is stated that in cases of habeas corpus, by the common law, the "truth of the return cannot be contested, and there is no remedy for the party aggrieved, but an action on the case for the false return, or by information, or indictment in the name of the public." To the same effect are the authorities cited by the plaintiff on this part of his brief. And Swift's Digest, at the page above noted, adds, "As the remedy by the common law is very imperfect, it has been supplied in this state by statute." In 1815 the legislature of this state had provided for pleadings and procedure in cases of habeas corpus, by an enactment, one section of which has been continued without change in every Revision to this time. It is now section 1271 of the Revision of 1888. That section declares that, "when any statements contained in such a return shall be contested, such court or judge may hear testimony, and examine and decide upon the truth, as well as the sufficiency of the return, and render such judgment as to the law and justice shall appertain." Since that statute, it has been permissible, in cases of habeas corpus, for the applicant to demur to the return, to deny it, or to confess and avoid its effect by setting up other facts. A writ of this kind could not, of course, be made to perform the office of a writ of error. Since the passage of that statute, the parties to these writs have been accustomed, whenever they saw fit to do so, to use the liberty of pleading indicated by the quoted section. Hill v. Goodrich, 32 Conn. 588; Macready v. Wilcox, 33 Conn. 321; In re Bion, 59 Conn. 372, 20 Atl. 002; Yudkin v. Gates, 60 Conn. 426, 22 Atl. 776; Whalen v. Olmstead, 61 Conn. 263, 23 Atl. 964. Whatever doubt there was, if any, as to the propriety of such procedure in cases of habeas corpus, must now be removed by the act of 1895, c. 326, p. 667, which expressly provides for any kind of pleadings in any case where a mittimus signed by a justice of the peace is made part of the return. And when pleadings are allowed the rules which govern pleadings, so far as they are applicable, must be observed, and the effect of the pleadings on the question upon which the court is to decide must be held to have its full force. One of these rules is such that a demurrer to the return, and an answer raising an issue of fact, cannot be pending at the same time. Hoadley v. Smith. 36 Conn. 371, 372; Hotchkiss v. Hoy, 41 Conn. 568; Brainard v. Staub, 61 Conn. 570, 24 Atl. 1040. Another is that the plaintiff, having presented an issue of fact upon the return, cannot raise any question as to its legal sufficiency. Adams v. Way, 32 Conn. 160; Morehouse v. Northrop, 33 Conn. 380, 387; Hoadley v. Smith, supra; Healey v. New Haven, 49 Conn. 394.

Applying these rules to this case, and regarding the questions of fact as settled, the only remaining question presented by the return is whether or not the justice of the peace had power to issue the mittimuses 10 days after the plaintiff had been sentenced; the justice court at which he had been convicted having, meantime, been adjourned without day. It is found that all the proceedings before the justice, up to and including the sentences, were regular and lawful. So that the question is, did such delay operate to deprive the justice of power to issue the mittimuses? Stated in another way, the question might be, did that delay...