State v. Browne

• Decision Date: 06 June 1932
• Parties: STATE ex rel. PERKY v. BROWNE, Circuit Judge.
• Court: Florida Supreme Court

142 So. 247

105 Fla. 631

STATE ex rel. PERKY v. BROWNE, Circuit Judge.

Florida Supreme Court, Division B.

June 6, 1932

Original proceeding for a writ of prohibition by the State, on the relation of Helen D. Perky, against Jefferson B. Browne, as Judge of the Circuit Court of the Twentieth Judicial Circuit in and for Monroe County.

Rule nisi discharged, and proceeding dismissed.

COUNSEL

Bryant & Pittman, of Miami, for relator.

Wm. H Malone, of Key West, for respondent.

OPINION

DAVIS J.

Rule nisi in prohibition was issued in this cause to prohibit the circuit court and respondent circuit judge of the Twentieth judicial circuit from entertaining any jurisdiction over one R. C. Perky, or from in any manner interfering with or entertaining jurisdiction with respect to any actions involving a marital controversy between said R. C. Perky and his wife, Helen Perky, who appeared to be prosecuting a separate maintenance suit against her husband in the circuit court of Dade county, wherein a writ of ne exeat had been issued by the circuit judge there and sent as authorized by statute for service upon the defendant in Monroe county in the Twentieth judicial circuit.

The writ of ne exeat issued by the circuit court of the Eleventh judicial circuit in Dade county was served in Monroe county upon the defendant R. C. Perky, who promptly sued out a writ of habeas corpus before the circuit judge of the Twentieth judicial circuit exercising jurisdiction in Monroe county.

Prohibition was applied for here upon the theory that the circuit court of the Twentieth judicial circuit in Monroe county had no jurisdiction to interfere by habeas corpus with the execution of process of another circuit court, such as a writ of ne exeat, issued by a circuit judge of the Eleventh judicial circuit in Dade county. ^[1]

That prohibition will lie in certain instances in habeas corpus cases as well as other cases is a proposition which has recently been affirmed by this court. See Frederick v Rowe, Circuit Judge, 140 So. 915, decided at the present term.

The writ of habeas corpus is a high prerogative writ, and, when properly issued, supersedes all other writs. But jurisdiction to issue a writ of habeas corpus confers no jurisdiction to thereafter order a prisoner released or discharged to the prejudice of the lawful exercise of jurisdiction by a co-ordinate court. See People v. Zimmer, 252 Ill. 9, 96 N.E. 529.

Yet interference by prohibition with an orderly habeas corpus proceeding being entertained by a circuit judge of this state must rest upon exceptional circumstances demonstrating a clear foundation, since the organic right of any person detained in custody to have the cause of his detention inquired into and to be discharged upon a writ of habeas corpus is a constitutional privilege of the most sacred character. The high prerogative writ of habeas corpus cannot be lightly interfered with, delayed, or defeated by the issuance from a superior court of other extraordinary writs such as prohibition, having the effect of hindering or delaying the discharge of the applicant from alleged illegal custody.

At the same time, however, questions of conflict of jurisdiction between the circuit courts of the state, involving the exercise of conflicting powers by one circuit court in derogation of the processes or judgments of another circuit court having jurisdiction to proceed, do lie within the province of this court to decide.

And this court may in due course of procedure employ such writs and proceedings as it has constitutional power to issue or entertain, to enable it to make effective its determination of claims of alleged conflicts of jurisdiction between different circuit courts, including questions of alleged conflict of jurisdiction arising out of the asserted usurpation of power by one circuit court against the processes, judgments, or decrees of another circuit court, through the alleged improper use of writ of habeas corpus for that purpose. See Frederick, Solicitor, v. Rowe, Circuit Judge, supra.

A circuit court having jurisdiction to issue a writ of ne exeat in a pending chancery case cannot have its process nullified through an unwarranted collateral attack entertained against such process by habeas corpus sued out in another circuit in which the defendant arrested on such writ of ne exeat may have been found. This is true in every case except where the writ of ne exeat is shown to be void and not merely irregular or defective in form or substance. 29 C.J. 51.

A writ of ne exeat issued pursuant to sections 4976-4979, C. G. L., sections 3184-3187, R. G. S., runs throughout the state, ^[2]and complainant, who has complied with the statute and given security to have such process issued, should not have his rights under such writ of ne exeat rendered ineffective through the improvident discharge of the defendant in habeas corpus proceedings instituted in another circuit where such writ may have been executed. Unless the writ of ne exeat is without jurisdiction or void, relief from it should be sought in the court from which it was issued in the first instance.

The constitutional right to a writ of habeas corpus, which is guaranteed by section 7 of the Declaration of Rights of the Constitution, is duly accorded whenever the right to the issuance of such writ of habeas corpus is not denied, and the writ upon due application is speedily issued. Nor can this court by writ of prohibition or otherwise inhibit a circuit judge from the mere issuance of a writ of habeas corpus under section 11 of article 5 of the Constitution.

But after the writ is once issued and returned, and the prisoner has been duly brought before the circuit judge on such writ, in order that the cause of his detention may be inquired into, the Supreme Court then has power to prohibit by writ of prohibition the wrongful discharge or unauthorized release of the person detained, when such release would be in derogation of the processes, jurisdiction, judgment, or powers of another court which had within its jurisdiction issued the process or order upon which the petitioner in habeas corpus is being held, when such remedy of prohibition is properly invoked in this court to prevent a conflict of jurisdiction between the court issuing the writ of habeas corpus and the court upon whose process, judgment, decree, or order the applicant for the writ is being detained. This procedure was the course followed and approved as the proper one in the recent case we had here from Volusia county heretofore cited. See State ex rel. Frederick, Solicitor, v. Rowe, Judge, supra.

In the suggestion for issuance of the rule nisi it was alleged that the respondent circuit judge, who had issued a writ of habeas corpus to inquire into Perky's detention under the first writ of ne exeat, refused to make any order disposing of the case, although it was made to appear to him that Judge Trammell, who issued that writ of ne exeat, had quashed it and ordered another to issue in its stead. This latter writ of ne exeat is alleged not to have been served because of the fact that the respondent circuit judge would not permit it to be served so long as the habeas corpus proceeding as to the first writ of ne exeat remained undisposed of.

By his return, the respondent circuit judge denies that he has refused to permit service of the second writ of ne exeat...