State v. Adler

• Decision Date: 24 February 1900
• Citation: 55 S.W. 851,67 Ark. 469
• Parties: STATE v. ADLER
• Court: Arkansas Supreme Court

55 S.W. 851

67 Ark. 469

STATE v. ADLER

Supreme Court of Arkansas

February 24, 1900

Appeal from Independence Circuit Court, FREDERICK D. FULKERSON Judge.

Judgment affirmed.

Jeff Davis, Attorney General, Chas. Jacobson, S.D. Campbell and J C. Yancey, for appellant.

It was in the surety's power to surrender his principal, and having failed to do so, he is liable on the bond. 49 S.W. 349; 62 Ark. 505; 51 Am. Rep. 277; 35 Ark. 532; 25 Am. Rep. 524; 35 Am. Rep. 437; 4 Am. Rep. 58; 16 Wall. 366. The habeas corpus act (Rev. St. U.S. §§ 751-766) gives the federal courts power to release a person only when the body of the petitioner can be brought before the judge and by the person actually having him under involuntary custody. Church, Habeas Corpus, § 87, p. 106; 169 U.S. 293, 294; 1 Am. & Eng. Enc. Law, 1067; 172 U.S. 148, S. C. 19 S.Ct. 110; also, 4 Am. & Eng. Dec. in Eq. 495; 29 Ark. 47; 43 Ark. 107; 48 Ark. 151; 54 Ark. 627; 62 Ark. 439. The return must be made by the officer or person having the petitioner in custody under the alleged illegal process. 114 U.S. 564; 6 Martin, 569; Rev. Stat. U.S. §§ 755, 756, 757 and 758; 3 Utah 50. The release in a habeas corpus case relates only to the particular writ under which the prisoner is held. 9 Peters, 704; 13 Fed. Cas. 450; 140 U.S. 278, 289; 29 Ark. 575; 55 Ark. 633. The federal court had no jurisdiction to issue habeas corpus where the petitioner is not held in violation of the constitution or a law of congress or a treaty of the United States. 18 F. 62, 68; 13 West. Jur. 505. Appellant had no right to make an arrest under a "John Doe" warrant, and in so doing was violating the law. 153 U.S. 78; 92 F. 881; 4 Dill. 323; 34 Ark. 174.

Jacob Trieber, for appellee.

The appearance and filing of pleas by the respondents gave the court all necessary jurisdiction of the parties. 46 Ark. 38; 64 Mo. 205. The judge and court had jurisdiction of this class of cases and of this particular one. Rev. Stat. U.S. §§ 752, 753; 82 F. 302; 87 F. 453; 173 U.S. 277; 100 U.S. 257; 135 U.S. 1; 117 U.S. 241; 173 U.S. 277. The question of jurisdiction cannot be raised collaterally. 10 Wheat. 192; 152 U.S. 327, 340; 50 Ark. 338; 49 Ark. 397; 88 Tenn. 734; 60 Wis. 349; 64 Mo. 205. The discharge of the prisoner by habeas corpus placed him out of the reach of his bail and discharged it. 38 N. J. Law, 247; 1 Bush, 616; 25 Ark. 315; 91 Ky. 588; 80 Ky. 208; Doug. 45; 1 Overton, 224; 35 Kas. 659; 107 U.S. 601.

Morris M. Cohn, for appellants, in reply.

The judge of the district had no jurisdiction to act outside of the territorial limits of his court. 5 Mason, 35, 40; 3 Wash. C. C. 456; 12 Pet. 300, 328-9. Cf. Rev. Stat. U. S. § 533; 1 G. & T's. notes 223, 224; 2 Ark. 494; 31 N.E. 88; 17 Ohio St. 146. The habeas corpus act of congress limits the jurisdiction of the judge to cases within the jurisdiction of his court. Rev. Stat. U. S. § 752. "Within the jurisdiction," as used therein, means within the territorial jurisdiction. If the judge was without jurisdiction, his rulings were void. 124 U.S. 200, 220. No appeal lies from the decision of a district judge in a habeas corpus proceeding. 160 U.S. 231, 244; 157 U.S. 697; 121 U.S. 87.

Jacob Trieber, for appellees, in reply.

In the absence of evidence showing where the writ was issued, the presumption is that it was issued at the proper place. 50 Ark. 338. The objection to the place of issuance of the writ, not having been raised in the court below, was not open to review on direct appeal; much less in a collateral proceeding. 116 U.S. 80, 93; 4 U.S. App. 603. The decision of a court that it has jurisdiction can not be questioned collaterally. 1 Black, Judg., § 274. That the federal judges have the power to issue the writ, and that an appeal lies therefrom, see: 45 Ark. 158; 64 Mo. 205.

OPINION

BUNN, C. J.

This is a suit by the state against the defendant, Nathan Adler, surety on a forfeited bail bond. Adler made defense that while his principal in said bond, one A. M. Schlierholz, was in his custody as such bail, and before the day set for the appearance of Schlierholtz, and his trial by the justice of the peace before whom the charge against him was pending, he the said Schlierholz, was taken in custody by the United States marshal of the Eastern district of Arkansas, and taken from his (Adler's) custody, under and by virtue of a writ of habeas corpus issued by the Hon. John A. Williams, Judge of the United States district court for the Eastern district of Arkansas, and by virtue of said writ taken to the city of Little Rock before the forfeiture of said bond had been declared, and that for this reason he was unable to produce the body of said Schlierholtz before said justice of the peace court, as he had undertaken in said bond to do; that afterwards, on the 3d day of February, 1899, when said habeas corpus proceedings came on for hearing before said United States district judge, appellant therein, the State of Arkansas, appeared before said judge, and filed her response, as did also other parties named in the writ of habeas corpus, and after a hearing by said judge it was by him decided and determined that said Schlierholtz was illegally deprived of his liberty by virtue and by reason of said cause pending before said Ashley (J. P.), and he was ordered by said judge to be discharged; that by reason of said proceedings he (Adler) was powerless to produce the body of said Schlierholz at the time said forfeiture was taken.

With the answer was exhibited the petition of Schlierholz for the writ of habeas corpus, and, as exhibits to the same, the affidavit of E. M. Phillips, charging him with the crime of false imprisonment; also a warrant of arrest, issued by N. E. Duffy, J. P. (the first justice of the peace, from whom a change of venue was subsequently taken to Ashley, another justice of the peace in Independence county); also, the writ of habeas corpus. The record also contains all proper returns and the proceedings before the Hon. John A. Williams on the hearing of the petition for the writ, and the appearance and responses of the parties summoned therein on his order, among whom is the State of Arkansas, and his findings and judgment on the issues therein made before him.

Such being the evidence before the circuit court, thereupon the appellant requested the court, in writing, to find the facts as follows:

"1. That Charles A. M. Schlierholz and defendant Nathan Adler executed the bond herein sued on, and there has been a breach of said bond on the part of the defendant; that said bond had been forfeited, and defendant Adler is liable to the State of Arkansas for the penalty thereof.

"2. That on the 10th day of July, 1898, the defendant Schlierholz procured himself to be taken into the custody of the United States marshal for the Eastern District of Arkansas, and the only authority for such custody at that time was a telegram from Judge John A. Williams, sent from Manitou, Colorado, where said judge then was, which telegram is marked 'Exhibit D' to stenographer's transcript.

"3. That defendant Nathan Adler never was at any time a party to the habeas corpus proceedings, and there was no notice of such proceedings to any one until July 21, 1898, and after the forfeiture was taken on the bond sued on.

"4. That at the time said bond was forfeited said defendant Adler was not deprived of the privilege of surrendering him by law, and the obligee in said bond had done nothing to discharge defendant Adler from his obligations, and defendant is liable on said bond.

"5. The district judge, John A. Williams, had no jurisdiction to discharge defendant, Nathan Adler, from his obligation on said bond, and, as far as said order seeks to impair such obligation of said Adler, said order is null and void.

"6. That defendant Adler has never surrendered nor attempted to arrest or retake said Schlierholz for the purpose of stable, sheriff or jailer in Independence county, nor has he attempted to arrest or retake said Schlierholz for the purpose of making such surrender."

And the court refused to find the facts as contained in any one of said foregoing paragraphs, as requested by appellant, and to each refusal appellant excepted, and duly saved her exceptions of record.

At the request of the appellee, the court found the facts as follows:

"The court finds the facts to be: That defendant executed a bail bond to the State of Arkansas, on the 6th day of July, 1898, in the sum of five hundred dollars, for the appearance of the defendant Schlierholz on July 9, 1898, before N. E. Duffy, a justice of the peace for Independence county, to answer a criminal charge on which said justice had issued a warrant. On July 9th the accused appeared, and on his motion the venue was changed to Justice W. C. Ashley, and the cause set for July 11th. That on July 10, 1898, the said Schlierholz was taken in custody by the United States marshal of the Eastern District of Arkansas, in pursuance of a writ of habeas corpus issued for him and commanding the marshal to take his body, which writ was issued by the Hon. John A. Williams, district judge of the United States for the Eastern District of Arkansas, and while in said custody, on July 11th, a forfeiture was entered by the justice before whom the cause was set for hearing. That in the habeas corpus proceedings before said United States judge the state entered its appearance and filed its response, as did also the justice and the sheriff; that the question of jurisdiction of the said United States judge to issue said writ of habeas corpus was raised, and by the judge decided that he had jurisdiction, and upon the hearing made an order discharging said Schlierholz from the custody of his bail, the defendant Adler, and declared...