State ex rel. Stevenson v. Collins

• Citation: 6 N.W. 692,54 Iowa 441
• Parties: THE STATE OF IOWA EX REL. STEVENSON AND ANOTHER v. COLLINS AND ANOTHER.
• Decision Date: 05 October 1880
• Court: Iowa Supreme Court

54 Iowa 441

6 N.W. 692

THE STATE OF IOWA EX REL. STEVENSON AND ANOTHER

v.COLLINS AND ANOTHER.

Supreme Court of Iowa.

Filed October 5, 1880.

Appeal from Lee circuit court.

The question in the case arises upon the taxation of costs. J. P.Steyenson, as the guardian, and Jemima Forsythe, as the mother of Julia Forsythe, a minor, presented a petition to the Hon. J. B. Drayer, circuit judge for Lee county, for the issuance of a writ of habeas corpus in behalf of the said Julia Forsythe upon the alleged ground that she was illegally restrained by the defendant of her liberty. The writ was granted and served; the child was produced by the defendants and a hearing had, and it was adjudged that the child was not illegally restrained of her liberty, and that the defendants were entitled to the custody of her, and she was accordingly remanded. Upon motion made in the circuit court the costs of the proceedings were taxed to Lee county, that being the county in which the defendants and applicant resided. From such taxation of costs Lee county appealed; service of notice of appeal being made on both plaintiffs and defendants.Craig & Collier, for appellant.

No appearance for appellees.

ADAMS, C. J.

The costs being less than $100, a certificate of appeal was given, which was in these words: “Whether, in a proceeding of habeas corpus for the custody of a minor child, in which the applicant fails, and the child is allowed to remain with the defendants, the county in which the application is made and the proceedings heard, and the applicant resides, is liable for the costs of the proceedings.” The proceedings in this case were instituted in the name of the state, and for the purpose of restoring to liberty a person entitled to the protection of the state. The circuit court, we presume, was impressed with the idea that the proceedings were essentially criminal in their nature. But, under our statute, it appears to us that they cannot be so regarded. Chapter 13 of the Code, being the chapter of Habeas Corpus, is embraced within part third of the Code, which is entitled Code of Civil Practice. The person restrained of his liberty is denominated plaintiff, (section 3462,) and the proceedings, properly, should be instituted in his name. This appears not alone from the fact that the person restrained is denominated in the statute plaintiff, but the proceedings are not instituted to punish a wrong-doer but to enforce a civil right.

It is true that the Code...