State v. Speake

• Decision Date: 30 April 1914
• Docket Number: 725
• Citation: 65 So. 840,187 Ala. 426
• Parties: STATE ex rel. BRICKELL, Atty. Gen., et al. v. SPEAKE, Circuit Judge.
• Court: Alabama Supreme Court

65 So. 840

187 Ala. 426

STATE ex rel. BRICKELL, Atty. Gen., et al. v. SPEAKE, Circuit Judge.

No. 725

Supreme Court of Alabama

April 30, 1914

Rehearing Denied July 2, 1914

Writ of prohibition on the part of the State of Alabama, on the relation of the Attorney General, to prohibit Hon. D.W Speake, as Judge of the Eighth Judicial Circuit, from entertaining a writ of habeas corpus on behalf of Ben F Strange, alleged to be in the custody of the sheriff of Morgan county under a warrant or order for contempt issued by Hon. Thomas W. Wert, as Judge of the Morgan County Law and Equity Court, sitting in equity. Prohibition awarded.

R.C Brickell, Atty. Gen., W.L. Martin, Asst. Atty. Gen., Melvin Hutson and E.W. Godbey, both of Decatur, for appellant.

Wert & Lynne, of Decatur, for appellee.

ANDERSON C.J.

"The writ of habeas corpus has been defined, or rather described, as 'that legal process which is employed for the summary vindication of the right of personal liberty when illegally restrained.' Hurd on Habeas Corpus, 129. It is a common-law writ, employed by the courts of common law, of superior jurisdiction, and the court of chancery, before the enactment of statutes regulating its use. These statutes have not been construed as diminishing the common-law jurisdiction of the courts in the employment of the writ. They are regarded as 'increasing the facilities for procuring it, enlarging the class of officers having jurisdiction in respect of it, imposing penalties for refusing to grant it, or to obey it, and providing for a speedy return, and prompt trial and discharge of the person, if not held according to the law of the land.' People, etc., v. Liscomb, 60 N.Y. 566 . The statutes of this state do not extend to the writ as a common-law remedy, employed by the courts of superior jurisdiction, or the court of chancery, returnable into court, and heard in term time. They treat of it and confer jurisdiction as a remedy for illegal imprisonment to be pursued by judicial officers, differing in degree, and of different general jurisdiction, returnable not into court, but in vacation, and heard by the officer as a magistrate, and not as a court.

"A superior court, in the exercise of its common-law jurisdiction, may employ the writ of habeas corpus to bring before it the body of a person illegally imprisoned, and, if the imprisonment is under legal process, or the judgment or sentence of a court of inferior jurisdiction, may award a writ of certiorari, removing the record. The proceeding is then in its nature appellate, and there may be an inquiry into the regularity of the process, judgment, or sentence. When, however, the writ is sued out under the statute, and the jurisdiction conferred by the statute on a single magistrate is to be exercised in vacation, the proceeding is not in its nature appellate, but rather original, and the validity of the process, judgment, or sentence is drawn in question collaterally. The general principle, then, prevails that, when a record or process is collaterally assailed, it must be for illegality, not for error or irregularity. The statute affirms this principle, in declaring that, on the return to a writ of habeas corpus, there is no 'authority to inquire into the legality or justice of any order judgment, decree or process of any court legally constituted, or into the justice or propriety of any commitment for contempt made by a court, officer, or body, according to law, and charged in such commitment.' Code of 1876, § 4961. The word 'legality' is here employed in the sense of 'regularity,' and...