Selz v. Presurger

• Decision Date: 17 February 1887
• Citation: 49 N.J.L. 396,8 A. 118
• Parties: SELZ and another v. PRESURGER.
• Court: New Jersey Supreme Court

8 A. 118

49 N.J.L. 396

SELZ and another

v. PRESURGER.

Supreme Court of New Jersey.

February 17, 1887.

(Syllabus by the Court.)

On habeas corpue.

Mr. Kalisch, for defendant.

C. Parker, for plaintiffs.

DIXON, J. The defendant was arrested on a capias out of this court at the suit of the plaintiffs, issued upon the order of a supreme court commissioner, who adjudged that the defendant had fraudulently contracted the debt sued for, and had assigned, removed, and disposed of his property with intent to defraud his creditors. Subsequently he applied to one of the justices of this court for a discharge, upon the ground that the affidavits on which the commissioner had made his order were insufficient. The justice refused to discharge him. Thereupon he sued out a writ of habeas corpus, and, the return thereto showing that he is detained by virtue of the capias, he prays a discharge upon the same ground as that on which he based his application to the justice. The plaintiffs meet him with the preliminary objection that the determination of the justice is conclusive. It seems, however, to be the better opinion that the doctrine of res judicata is not applicable to the summary determination, by a subordinate tribunal, of motions which are merely incidental, the decision of which, not being entered upon the record, cannot be reviewed in the appellate courts, Simson v. Hart, 14 Johns. 62, 76; Dickenson v. Gilliland,! Cow. 481, 495; Van Rensselaer v. Sheriff, Id. 501; Dollfus v. Frosch, 5 Hill, 493, note a.

In Yates v. People, 6 Johns. 337, Kent, C. J., expressed the conviction that in England the resolution of a court upon habeas corpus could not be made the subject of a writ of error; and in harmony with this view, and the rule that non-appealable orders are not conclusive, is the declaration of Baron Parke in Ex parte Partington, 13 Mees. & W. 679, that a prisoner's having twice been refused his discharge on habeas corpus did not prevent a subsequent application for the same writ, since the defendant bad "a right to the opinion of every court as to the propriety of his imprisonment." But after the New York court of errors had, in Yates v. People, ubi supra, held that a writ of error would lie to a decision on habeas corpus, it became the settled doctrine in that state that such a decision was res judicata; Senator Paige, in Mercein v. People, 25 Wend. 64, 100, announcing the rule to be: "Wherever a final adjudication of an inferior court, or of persons invested with power to decide on the property and rights of the citizen, is examinable by the supreme court upon a writ of error or certiorari, such final adjudication may be pleaded as res adjadicata, and is conclusive upon the parties in all future controversies relating to the same matter." In Dwight v. St. John, 25 N. Y. 203, the like conclusive force was ascribed to an order of the supreme court on a motion to cancel a judgment upon the ground that the order was appealable.

In the case before us the decision of the justice refusing to discharge the prisoner was rendered upon a motion merely incidental to the writ, and could not be subjected to review by any appellate proceeding. We therefore think it is not entitled to stand as res judicata, and that, if the law has provided a method of bringing the same questions under judicial review, its considerations should not be strictly precluded by that decision.

But can the question which the prisoner raises be considered upon habeas corpust The defendant insists that it can, by virtue of the twenty-fifth section of the habeas corpus act approved March 27, 1874, (Revision, p. 468.) Prior to this statute, it is, I think, plain that the sufficiency of the affidavits, upon which an order for bail, in an action founded upon contract, had been made, would not be considered on habeas corpus. That writ raised only the question whether the prisoner was legally in custody, (State v. Gray, 37 N. J. Law, 368;) and when the warrant for the prisoner's detention was legal, that is, valid on its face, and emanating from an authority having jurisdiction, the prisoner was legally in custody, and could not be discharged on habeas corpus, (In re Sheriff of Middlesex, 11 Adol. & E. 273; note in 3 Hill, 661; People v. Liscomb, 60 N. Y. 559; Peltier v. Pennington, 14 N. J. Law, 312.) Under the constitution and laws of this state, a capias issuing, in an action ex contractu, out of a superior court, is legal if it be supported by an order for bail made in conformity with the statute regulating imprisonment for debt. State v. Dunn, 25 N. J. Law, 214. Certainly this is true when the order is based...