State ex rel. Allen v. Fayette Circuit Court, 28471.

• Decision Date: 27 October 1948
• Docket Number: No. 28471.,28471.
• Parties: STATE ex rel. ALLEN v. FAYETTE CIRCUIT COURT et al.
• Court: Indiana Supreme Court

226 Ind. 432

81 N.E.2d 683

STATE ex rel. ALLEN

v.FAYETTE CIRCUIT COURT et al.

No. 28471.

Supreme Court of Indiana.

Oct. 27, 1948.

Original mandamus proceeding by State of Indiana on the relation of Alberta Mae Allen against Fayette Circuit Court and Allen Wiles, as judge of the Fayette Circuit Court.

Alternate writ of mandamus vacated and dissolved.Rosenberg & Dawson, of Indianapolis, and Leroy C. Hanby, of Connersville, for appellant.

Himelick & Himelick, George L. Kerrigan and Clarence S. Roots, all of Connersville, for appellees.

EMMERT, Judge.

This is an original action under § 3-2201, Burns' 1946 Replacement, Acts 1881, Spec. Sess., ch. 38, § 803, p. 240, 1911, ch. 223, § 1, p. 541, 1915, ch. 87, § 1, p. 207, 1933, ch. 102, § 1, p. 688, to mandate the Fayette Circuit Court to grant a change of judge in a habeas corpus action. From the petition and return thereto it appears that on the 26th day of July 1948, the relatrix filed a verified petition in the Fayette Circuit Court for a writ of habeas corpus, alleging that she was held in the custody of the sheriff of Fayette County under a void order of the Juvenile Court of Fayette County, and under a void order committing her for contempt of said Juvenile Court, and also under an order committing her to jail in default of a $2500 bond, which she alleged was excessive, to answer a criminal charge of child stealing.

On the same day the petition for writ of habeas corpus was filed in the Fayette Circuit Court, the writ was issued directed to the sheriff of Fayette County returnable the 31st day of July, 1948, at 9:00 o'clock A.M. Immediately following the order for the writ, the relatrix filed a verified motion for change of judge, and demanded that the court immediately grant the same, which the court refused to do at that time, but held the ruling on the motion for change of judge in abeyance. On July 27, 1948, the alternate writ of mandate was sought and obtained from this court.

A writ of habeas corpus is an ancient common law remedy for imprisonment without just cause, the origin of which is obscure by reason of its great antiquity. Harold Hulme, ‘Our American Heritage: Freedoms Derived from the English Constitution,’ Vol. 32, Am. Bar Assn. J. 849, 851; 25 Am.Jur. 144, 145, § 3; 29 C.J., § 1, page 7; 39 C.J.S., Habeas Corpus, § 1, page 426. By virtue of its recognition in the Bill of Rights of the Constitution of Indiana, the privilege of the writ exists independent of the statute and flows from our constitution for the protection of all whose liberty may be restrained under unlawful authority. The common law origin of the writ is recognized in Wright v. State, 1854, 5 Ind. 290, 294,61 Am.Dec. 90; as follows:

‘* * * Its great object is the liberation of those who may be imprisoned without just cause, and it has been so favorably regarded in this country, that the provisions of the English act, 31 Charles 2, chap. 2, have been substantially adopted by the several states. We have even gone further, and by the 27th section of the bill of rights in our constitution provided, that ‘the privilege of the writ of habeas corpus shall not be suspended, except in case of rebellion or invasion; and then only if the public safety demand it.’'

Although the Legislature has made and provided reasonable regulation for its use, §§ 3-1901 to 3-1925, Burns' 1946 Replacement, the writ is not a statutory remedy in a strict sense of the term, but rather a remedy recognized and continued by the Constitution.

‘It is the prevailing view that habeas corpus is, in its nature, a civil rather than a criminal proceeding, even though sought in behalf of one charged with, or convicted of crime.’ 25 Am.Jur. 151, § 12; See also 29 C.J. § 1, page 8; 39 C.J.S., Habeas Corpus, § 1, page 426.

The respondent takes the position that no change of judge may be had on a habeas corpus proceeding under the authority of Garner v. Gordon, 18...