Smith v. Clausmeier

• Citation: 35 N.E. 904,136 Ind. 105
• Parties: SMITH v. CLAUSMEIER.
• Decision Date: 20 December 1893
• Court: Supreme Court of Indiana

136 Ind. 105

35 N.E. 904

SMITH

v.CLAUSMEIER.

Supreme Court of Indiana.

Dec. 20, 1893.

Appeal from superior court, Allen county; C. M. Dawson, Judge.

Petition by Harry Smith for his discharge from imprisonment on a writ of habeas corpus. The petition was denied, and petitioner appeals. Reversed.

Samuel M. Hench, for appellant. Henry Colerick and J. E. K. France, for appellee.

HOWARD, C. J.

The appellant filed his petition for a writ of habeas corpus, alleging that he was unlawfully restrained of his liberty, in the jail of Allen county, by the appellee, who is the sheriff of said county. On the issue of the writ, the sheriff's return showed that the appellant was held on a mittimus issued by Daniel Ryan, a justice of the peace of Wayne township, said county, issued upon a judgment of conviction for vagrancy. It was further averred in the return that the appellant had been tried on a plea of not guilty, on an affidavit filed by one Henry Meyers, and that the judgment was unappealed from. Copies of the affidavit, the proceedings and judgment, and the mittimus, were made parts of the return; each purporting to be of the date of June 15, 1893. The appellant filed his exceptions to the return, alleging insufficiency and incorrectness. Evidence was heard on the issues joined, and the court found, for the appellee, that the appellant (petitioner) was lawfully in his custody, as sheriff, and remanded the petitioner.

Numerous errors are assigned and discussed by appellant. The only question, however, that need be considered, is whether the justice of the peace had jurisdiction to render the judgment and issue the mittimus set out in the record. As to the irregularities claimed by counsel to exist in the proceedings subsequent to the alleged filing of the affidavit, it may be said, in brief, that they constitute no ground for the discharge of the petitioner on the writ of habeas corpus. This writ cannot be used for the purpose of reviewing a judgment. If the court had jurisdiction of the subject-matter and of the person of the petitioner, the after proceedings, however erroneous, cannot be inquired into by any collateral proceeding, but relief must be sought by direct review. Willis v. Bayles, 105 Ind. 363, 5 N. E. 8;McLaughlin v. Etchison, 127 Ind. 474, 27 N. E. 152; Hurd, Hab. Corp. (2d Ed.) 251, and following. In Church, Hab. Corp. § 127, it is said: “Where a court of first instance has competent jurisdiction to try and punish an offense, the higher court will not assume that the sentence is invalid, or unwarranted by law, so long as it remains unreversed. Neither will the court require the authority of the court of first instance to pass sentence to be set out in the return to a writ of habeas corpus. It is bound to assume, prima facie, that the unreversed sentence of a court of competent jurisdiction is correct.” The offense charged in the case before us was vagrancy, for which the fine is “not more than fifty dollars, nor less than five dollars.” On failure to pay or replevy the judgment, the defendant was committed to jail. The justice had, therefore, jurisdiction of the subject-matter. Rev. St. 1881, §§ 1637, 1647, 2134; Gillett, Crim. Law, § 73; Jenkins v. State, 78 Ind. 133. The question left for decision, then, is whether the justice had acquired jurisdiction of the person of the petitioner at the time of the trial and judgment.

The transcript of the proceedings before the justice was introduced in evidence. From this record it appeared that an affidavit in due form, charging the petitioner with the offense of vagrancy, was filed before the justice by one Henry Meyers, and that on this affidavit a warrant was issued by the justice, and a trial had, resulting in the conviction of appellant of the offense charged, and that, on failure of appellant to pay or replevy the fine and costs adjudged against him, a mittimus was issued, committing him to the jail of the county. The appellant then offered to prove by appellee, the sheriff, and by said justice of the peace, and also by Henry Meyers, that the record was untrue in several particulars, and particularly that no affidavit or complaint was filed with the justice against the appellant (petitioner) at the time of the trial. The court, however, excluded all offered testimony in contradiction of the record. Among the questions asked of Daniel Ryan, the justice, was the following, which, with the objection of the appellee, the ruling of the court, and the offer of the appellant, we set out as they appear in the bill of exceptions: “Q. I will ask you if it is not the fact that the affidavit referred to, and set out in your docket just read to the court, charging the petitioner with vagrancy, was not filed until after you had tried the petitioner, and had committed him to the jail of Allen county? (The defendant, Edward F. Clausmeier, objected to this question on the ground that the evidence is incompetent, immaterial, and irrelevant, and tends to attack collaterally, and by secondary proof, the verity of the judgment. The objection was sustained by the court. The petitioner, by counsel, then offered to prove by the witness that the affidavit set out in the record of the justice of the peace, at page 64 of Docket D, was not filed until after the prisoner had been tried, and committed to the county jail. The evidence offered was excluded by the court, to which the petitioner excepted.)”

There is some apparent conflict in the decisions as to the credit which should be given to the record of a court of inferior and limited jurisdiction. It has been held that, in a proceeding before a justice of the peace to obtain surety of the peace, the record of the justice as to the acts and things done by and before him is not conclusive, and may be contradicted by parol evidence. Smelzer v. Lockhart, 97 Ind. 315. The statute (Rev. St. 1881, § 1106) provides that “every person restrained of his liberty under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of the restraint, and shall be delivered therefrom when illegal;” and it is the rule that any statute which may operate in restraint of personal liberty must be strictly construed. Willis v. Bayles, cited above. Even in case of a court of superior and general jurisdiction, and where the record shows a judgment and sentence entered up against a defendant, a writ of habeas corpus will be awarded, and the defendant discharged, on a plea to the return, with proof showing that no such judgment was entered upon the order book until after adjournment of court. Passwater v. Edwards, 44 Ind. 343 Further, as to setting aside fraudulent and other judgments in a court of general jurisdiction, see Earle v. Earle, 91 Ind. 27;Miller v. Snyder, 6 Ind. 1;Patterson v. Pressley, 70 Ind. 94;Thompson v. McCorkle, 34 N. E. 813, (decided at last term;) Gillett, Crim. Law, § 67. Brickley v. Heilbruner, 7 Ind. 488, was a case where a judgment had been taken before a justice of the peace of one township against a defendant, who was a resident of another township, although the summons, on its face, and the record of the proceedings before the justice, showed that he was properly served. The common pleas court dismissed an action brought to vacate the judgment, but on appeal this court held that as the defendant was not a resident of the township where the suit was brought, and as there was in his township a justice competent to act, the summons was a nullity, and, as the defendant did not personally appear before the magistrate, and submit to jurisdiction, that the judgment itself was invalid. So, also, in Grass v. Hess, 37 Ind. 193, it was decided that where a resident of this state is sued out of his county before a justice of the peace, and process by summons is served upon him, and judgment is rendered against him without appearance, an injunction will lie to stay proceedings under the judgment. In a like case, (Gage v. Clark, 22 Ind. 163,) the court intimated a doubt as to whether the statutory modes of vacating judgments prevail before justices, as in courts of general jurisdiction. In Johnson v. Ramsay, 91 Ind. 189, this court, in citing the cases of Brickley v. Heilbruner and Grass v. Hess, supra, say: “These cases show that in Indiana an application to the proper court to vacate the judgment of a justice rendered against a person not a resident of the township in which the suit was brought is a direct attack upon the judgment; and they also show that, upon such a direct attack, you may prove the want of jurisdiction over the person, and the nullity of the summons,...