State v. Collins

• Decision Date: 05 October 1880
• Parties: THE STATE v. COLLINS ET AL
• Court: Iowa Supreme Court

6 N.W. 692

54 Iowa 441

THE STATE v. COLLINS ET AL

Supreme Court of Iowa, Des Moines

October 5, 1880

Appeal from Lee Circuit Court.

THE question in the case arise upon the taxation of costs. J. P Stevenson 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 defendants 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.

REVERSED.

Craig & Collien for appellant.

No appearance for appellees.

OPINION

ADAMS, CH. J.

The costs being less than $ 100, a certificate of appeal was given which is 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, Title XX 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, § 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...