State ex rel. Karr v. Taxing Dist. of Shelby Cnty.

• Decision Date: 30 April 1886
• Citation: 84 Tenn. 240
• Parties: The State, ex rel., L. Karr v. Taxing District of Shelby County.
• Court: Tennessee Supreme Court

84 Tenn. 240

The State, ex rel., L. Karr

v.Taxing District of Shelby County.

Supreme Court of Tennessee.

April Term, 1886.

FROM SHELBY.

Appeal in error from the Criminal Court of Shelby county. A. H. DOUGLASS, J.

S. P. WALKER for Taxing District.

ATTORNEY-GENERAL LEA and F. A. RYAN for the State.

COOPER, J., delivered the opinion of the Court.

The relator, L. Karr, was tried by the president of the board of fire and police commissioners of the Taxing District of Shelby county for a violation of the ordinances of the Taxing District, found guilty, and failing to pay the fine and costs, amounting to fifty dollars, was committed to the work-house district prison to be kept at labor, as directed by the ordinance of the district, for two hundred days, unless the fine should be sooner paid, or he be delivered according to law. Thereupon, the relator presented a petition to the judge of the criminal court of Shelby county for a writ of habeas corpus, stating the trial, conviction and sentence, and insisting that he was arrested without a warrant for an offense not shown to have been committed in the presence of an officer, that he was innocent of the offense charged, and was put upon his trial on his plea of not guilty, not by submission. The judge issued the writ to the jailor or sheriff of Shelby county, commanding him to bring the relator before him at the criminal court room at a designated time, with a proper return. The sheriff produced the relator at the time designated in open court, returning for answer to the writ that he held the relator as a prisoner under the mittimus, which he produced, of the president of the board of the Taxing District. Upon the hearing, as the entry on the minutes of the court shows, the prisoner was discharged, at the cost of the Taxing District, the court finding that the relator was arrested and brought before the recorder of the Taxing District, without any warrant or process, and fined upon a plea of not guilty, and the court being of opinion that the recorder could not acquire jurisdiction to try the cause without a plea of guilty and a submission of the case for trial. The Taxing District presented a bill of exceptions, which was signed by the judge and made a part of the record, and prayed an appeal to this court, which was granted. The bill of exceptions shows that, on the hearing, testimony was heard, over the objection of the Taxing District, tending to prove that the relator had been arrested without a warrant, and had not submitted his case, but pleaded not guilty, and was tried and convicted on that plea. The Taxing District has also presented a petition to this court, stating the facts, and asking that the proceedings before the judge of the criminal court be brought before the court for revision by the writ of certiorari.

In the early case of Renney v. Mayfield, 4 Hayw., 165, an appeal was taken from the order or judgment of the circuit court dismissing a writ of habeas corpus, and the judgment was affirmed. Afterward, in the case of The State ex rel. v. Malone, 3 Sneed, 413, upon an appeal from a similar order or judgment dismissing the writ, made in open court, it was held, without noticing the previous decision, that the judgment was final, and could not be revised in this court, either by appeal or writ of error. The decision was put upon two grounds: First, it was said that the delay incident to appeals and writs of error, would defeat the very object of the process, which is speedy and summary relief, and, it was added, if the party on whose application the writ issues can appeal, as in the case then before the court, the opposite party must have the same right. The second ground was that the writ was issued by the judge, not the clerk, and was returnable before himself, not the court, and triable by him. No one, it was added, would perhaps contend that an appeal or writ of error would lie from the judgments or orders of a judge in vacation, in the absence of any statutory provision for it. The jurisdiction of this court, continues the opinion, is confined to cases of appeal or writs of error, and they can only bring cases from courts of record. The accident of acting upon the case on some day of the term in open court can not affect the question. This decision was followed in the similar cases of Lee v. White, 4 Sneed, 73, and State v. Galloway, 5 Cold., 326. In this last case, the court treat as not material the closing remark quoted above from Malone's case, namely: That no means of appellate supervision exists “as to the judgment of a judge not of record in court.” And the former decision was adhered to, although it was conceded that the provisions of the Code, enacted after that decision, made the writ of habeas corpus returnable to, and triable by the court, as well as before the judge at chambers. The conclusion reached in these cases was repeated as a dictum in State v. Elmore, 6 Cold., 528, and has since been adhered to. And it has also been held that as there is no appeal from the judgment in a writ of habeas corpus, there can be none from a judgment for costs under the writ. State v. Blair (manuscript opinion at Jackson, 1876), These rulings have been so long acquiesced in by the profession and Legislature that we are not inclined to distrust them.

It should be noted, however, that the decision in the Malone case, as virtually conceded in the Galloway case, must rest upon the first ground relied on. For not only is the remark inaccurate, that writs of error can only bring cases from courts of record, and that there is no statutory provision for the correction of judgments or orders of a judge in vacation, if the language used means to go so far, but the Code, adopted since the decision, has made the proceedings under the writ of habeas corpus matters of record. It provides that the writ may be issued in term by the clerk, and tried by the court. It further provides that, when granted and tried by the judge at chambers, the judge shall return the proceedings, including all the papers in the cause and the final order, to his nearest court, to be there filed by the clerk as other records, a brief memorandum thereof, duly indexed, being entered upon the judgment or execution docket, and the clerk is to tax the costs and issue execution as in other cases: Code, sec. 3760. The refusal of an appeal or writ of error, under the law as it now stands, must proceed upon the ground that they would defeat the object of the process, speedy and summary relief. This would be true of an appeal in error which stays the execution of the judgment, but it would not be true of a writ of error. The latter writ is of right when demanded in time, but it does not prevent the execution of the judgment, unless accompanied by a writ of supersedeas, which can only be granted by one of the members of this court, and the granting of which rests in sound discretion. But a writ of error only lies from the final judgment of the circuit court in cases where an appeal in the nature of a writ of error would lie: Code, sec. 3176. The former remedy must, therefore, abide the fate of the latter. If the appeal in error can not be sustained, neither can a writ of error.

This court has often held that the writ of certiorari lies to remove the judicial sentences of all courts exercising statutory jurisdiction in a summary way, or by proceedings not according to the common law forms, where the writ of error does not lie: Durham v. United States, 4 Hayw., 79; Stuart v. Hall, 2 Tenn., 179; Kendrick v. State, Cooke, 474; Williams v. Pointer, 3 Lea, 366; Railroad v. ...