State v. Foster

• Decision Date: 05 February 1915
• Docket Number: 12561.
• Parties: STATE ex rel. SYVERSON v. FOSTER, Sheriff.
• Court: Washington Supreme Court

146 P. 169

84 Wash. 58

STATE ex rel. SYVERSON v. FOSTER, Sheriff.

No. 12561.

Supreme Court of Washington

February 5, 1915

Department 1. Original habeas corpus proceeding by the State, on relation of Harry Syverson, against T. C. Foster, as Sheriff of Lewis County, Wash. Writ issued.

Hayden Langhorne & Metzger, of Tacoma, for relator.

G. E Hamaker, of Portland, Or., for respondent.

CHADWICK J.

On the 24th day of October, 1913, a judgment was rendered in the superior court for Lewis county in favor of one Amy D. Bronson and against Harry Syverson. The action had been brought to recover damages for an injury to the person of the plaintiff. The judgment remaining unsatisfied, plaintiff filed a petition ex parte and obtained from the judge presiding an order directing that an execution issue against the person of the defendant, the present petitioner, commanding the sheriff of Lewis county, or the sheriff of any other county in the state of Washington where the relator might be found, to arrest him and hold him until the judgment was paid or satisfied, or until he should be discharged according to law. Syverson appeared in the superior court and in the original action by motion to vacate the order of arrest for the following reasons:

'That the court has no jurisdiction, in the matter, to issue such order. * * * That the showing made on behalf of the plaintiff was insufficient to warrant it being granted. That said order is contrary to the laws of the state of Washington, and to article 1, § 17, of the Constitution of the state of Washington. * * * That the warrant herein issued in this cause be vacated and quashed and the defendant discharged from the custody of the sheriff of Lewis county Wash., for the following reasons: That the order does not state or fix the amount of any bond, as provided by the statute, to be given on behalf of plaintiff suing out the warrant, * * * and that said order does not fix the amount of bail in which the defendant shall be held, as provided by law.'

The motion was brought on regularly for hearing and was overruled by the court. An order reaffirming the former order of arrest was entered. Petitioner was thereupon recommitted to the custody of the sheriff and is now held by him. A subsequent motion for bail was made and denied by the court. Whereupon the defendant filed a petition praying for a writ of habeas corpus. This petition was also denied. Petitioner then filed a petition for a like writ in this court. It is recited in the brief of the petitioner, and is not denied by respondent, although it does not appear in the transcript, that an appeal was taken from the order of the court denying the motion of the petitioner to vacate the order of arrest. The prayer of the petition in this court is for an order fixing bail pending a hearing and determination of the appeal.

It is contended by the respondent that inasmuch as the relator is held for an injury to the person of the party plaintiff (Rem. & Bal. Code, § 749), and which judgment is subject to execution under Rem. & Bal. Code, § 516, petitioner is held 'under a warrant or judgment of a court of competent jurisdiction,' and that the cause of his detention will not be inquired into; that he has no remedy and cannot release himself from the penalties imposed by law in the execution of the judgment pending an appeal unless he gives a supersedeas bond as in a civil action. From the argument of counsel we understand this to have been the opinion of the trial judge also. Without going into the merits of the case or inquiring into the right of a party to invoke the aid of the sections of the statute just referred to, we think that, so long as the right of the plaintiff in the original action execute a judgment by process against the person of the petitioner by imprisonment pending the payment of her judgment is questioned under section 17, art. 1, of the Constitution of the state, it follows as a matter of course that bail should be taken. The Constitution is sweeping in its terms. It says: 'There shall be no imprisonment for debt except in cases of absconding debtors.' It will be admitted that a very serious question of law has been raised by the petitioner.

The statute is silent as to the right of bail pending an appeal where the person of the debtor is held in satisfaction of an execution, and no cases are cited by counsel on either side. They say none can be found, and a hurried search by the writer of this opinion confirms the assurance of counsel; but it does not follow that there is no law to cover the case. A more frequent reference to fundamental principles would make for better law and save much time and energy wasted in reading, approving, discussing, distinguishing, or rejecting cases from the great mass of judicial opinions to be found in the published reports.

'Case law is fast becoming the great bane of the bench and bar. Our old-time great thinkers and profound reasoners, who conspicuously honored and distinguished our jurisprudence, have been succeeded very largely by an industrious, painstaking, far-searching army of sleuths, of the type of Sherlock Holmes, hunting some precedent in some case, confidently assured that if the search be long enough and far enough some apparently parallel case may be found to justify even the most absurd and ridiculous contention.' State v. Rose (Ohio) 106 N.E. 50.

The right of personal liberty 'is a right strictly natural,' of which the right to have a writ of habeas corpus to bring the body of one detained before a court of competent jurisdiction to inquire into the cause and nature of the commitment or detention is a guaranteed remedy.

'Next to personal security, the law of England regards, asserts, and preserves the personal liberty of individuals. This personal liberty consists in the power of locomotion, of changing situation, or moving one's person to whatsoever place one's own inclination may direct, without imprisonment or restraint, unless by due course of law. Concerning which we may make the same observations as upon the preceding article, that it is a right strictly natural; that the laws of England have never abridged it without sufficient cause; and that, in this kingdom, it cannot ever be abridged at the mere discretion of the magistrate, without the explicit permission of the laws. Here again the language of the great charter (i) is, that no freeman shall be taken or imprisoned but by the lawful judgment of his equals, or by the law of the land. And many

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