State ex rel. McCaslin v. Smith

• Decision Date: 12 January 1886
• Citation: 26 N.W. 258,65 Wis. 93
• Parties: STATE EX REL. MCCASLIN v. SMITH.
• Court: Wisconsin Supreme Court

65 Wis. 93

26 N.W. 258

STATE EX REL. MCCASLIN

v.SMITH.

Supreme Court of Wisconsin.

Filed January 12, 1886.

Error to circuit court, Eau Claire county.

H. W. Chynoweth, Asst. Atty. Gen., for the State.

T. F. Frauley, for defendant in error.

COLE, C. J.

The defendant in error made a complaint in writing, under oath, to the municipal judge of the city of Eau Claire, charging one George P. Davis of having committed the crime of larceny, by stealing the property of Anna Smith, of the value of $60. On the examination the municipal judge discharged Davis, on the ground that the evidence did not show that any offense had been committed by him. The municipal judge found, and certified in his docket, that the complaint made by the defendant in error was willful and malicious and without probable cause, and entered a judgment against him for the costs of the proceedings, including witness' fees, pursuant to section 4791, Rev. St. An execution was issued to enforce this judgment as in actions of tort, and for want of goods and chattels to satisfy the same the complainant was committed to the common jail of the county until these costs were paid, or until he was discharged therefrom. Thereupon Smith presented his petition to a court commissioner of the county for a writ of habeas corpus, and asking to be discharged from imprisonment. In his return to the writ the under-sheriff set forth the commitment and warrant by virtue of which he held the petitioner in custody. On the hearing the commissioner discharged Smith from custody, on the ground that his imprisonment was unlawful. The cause was then brought to the circuit court by certiorari, where the order of the commissioner discharging the petitioner was affirmed. The cause has been brought to this court by a writ of error for a review of this decision.

The counsel for the defendant in error, while not admitting that a writ of error lies to review this decision of the circuit court, declined to argue the question of practice. The assistant attorney general, however, discussed the question, claiming that a review of the decision may be had in that manner. He insists that the decision of the circuit court affirming the order of the commissioner is in the nature of a final judgment, which may be reviewed by the court on writ of error. In numerous cases this court has reviewed proceedings on habeas corpus had before commissioners or a judge at chambers on certiorari, but the precise question now presented has not been decided. There is no express provision made by statute for reviewing such a decision of the circuit court, but we are inclined to hold that it may be had on a writ of error. The order made in such a proceeding by the court is in the nature of a final judgment, and the policy of our constitution and laws is to allow a review of such an adjudication; and it is most in accord with our rules of practice and the analogies of the law to allow this to be done on writ of error. So far as the dicta of our decisions bear upon the point, they favor that practice. See In re Crow, 60 Wis. 349;S. C. 19 N. W. Rep. 713. It is true there is much authority for holding that a review of a decision on habeas corpus cannot be had by writ of error without a statute authorizing it, and the reason given is that the decision is not in the nature of a final judgment. But there is also much authority the other way. See Yates v. People, 6 Johns. 335;Ableman v. Booth, 21 How. 506; and cases cited by Mr. Justice BREESE in his dissenting opinion in Hammond v. People, 32 Ill. 446-457. But we shall not further discuss the question, but sustain the writ.

Both the commissioner and the circuit court held that the petitioner was entitled to be discharged from imprisonment, on the ground that section 4791, which authorized the municipal judge, on...