Yudkin v. Gates

• Decision Date: 21 April 1891
• Citation: 60 Conn. 426,22 A. 776
• Court: Connecticut Supreme Court
• Parties: YUDKIN v. GATES, Sheriff.

22 A. 776

60 Conn. 426

YUDKIN

v. GATES, Sheriff.

Supreme Court of Errors of Connecticut.

April 21, 1891.

Appeal from court of common pleas, New Haven county; Deming, Judge.

Petition by David Yudkin for writ of habeas corpus against Robert O. Gates, sheriff. From a judgment discharging the petitioner, defendant appeals. Affirmed.

J. W. Alling, for appellant.

C. Kleiner, for appellee.

FENN, J. This is a writ of habeas corpus in favor of David Yudkin, and against the sheriff of New Haven county, who made return to the court of common pleas for said county that he held the body of the plaintiff by virtue of two warrants of commitment issued upon two actions at law, by F. W. Holden, justice of the peace. The hearing was had upon the agreed statement of facts "that, at the time of signing the mittimuses, said Holden was the bondsman in both actions, that he was then the attorney of the plaintiffs in one of the actions, and that he was not otherwise interested in the suits." The court found that Holden was disqualified, and not a proper magistrate, and that therefore the mittimuses were illegal and void, and ordered that the plaintiff be discharged; from which judgment the defendant appealed, both parties signing a stipulation that the case should be argued at this session of this court. A motion to dismiss was filed, on the ground that the defendant Gates could be in no way aggrieved by the judgment, no costs having been taxed against him, being, by the fact that the mittimuses were valid on their face, protected from any action against him for holding the plaintiff thereunder; that he had no natural right to the custody of the plaintiff; and, so far as the defendant was concerned, the only judgment is that the plaintiff be discharged; that it was to be presumed that all parties whose interests could be affected by the judgment had actual notice, and might have availed themselves of their statutory right to be made parties; that, at any rate, in questions of jurisdiction, the parties to the record determine the controversy; and that, therefore, the defendant was not, under the provisions of Gen. St. § 1129, entitled to appeal, and this court was without jurisdiction. It was decided that the question presented by this motion should be argued with the appearand the decision reserved.

We think the motion should be denied. The statute referred to provides that, if either party thinks himself aggrieved, he may appeal. This language plainly expresses what we should hold to be the rule had the words "thinks himself" been omitted, namely, that the right to appeal depends upon the fact of being a party, not upon whether it shall finally be determined that the decision is one by which he is aggrieved. Any other construction would involve the decision of the question raised, in a preliminary hearing as to whether it could be raised. The plaintiff does not deny that the defendant is a party. He was expressly made so, and the only one, by the plaintiff himself. If he was not a party, there was none except the plaintiff in the court below. Besides, we think that the sheriff is the real and proper defendant in such cases. It is the universal practice to make him such. It would not be necessary, in order to constitute him a proper party to the action, that he should have a pecuniary interest in the controversy, but it would be easy to see that he has or might have.

Coming to the main question in the case, we think the decision of the court below should be sustained; that Justice Holden was disqualified, both by statute and at common law, and was therefore not a proper magistrate to issue the mittimuses under Gen. St. § 3392. By statute, under both sections 672 and 675,¹ being attorney in one case, and the bondsman for nonresident plaintiffs in both, he was disqualified from acting. It was the claim of the defendant that by the word "act," as used in these sections, judicial action in the actual trial of the case was meant. But this precise question has been decided otherwise in New Hartford v. Canaan, 52 Conn. 166, where this identical expression, in what is now the last part of section 675, was construed, and the court says: "This language is so exceedingly broad, embracing in terms any act and any proceeding, that we do not feel at liberty to accept the ideas of the plaintiffs' counsel, and restrict its application exclusively to an actual trial in court before the interested magistrate." The distinction between that case and the present is that in the case cited this construction was used to prevent disqualification; in the present it will cause it; but we think, when the object of such statutes, which is, as was said in Dodd v. Northrop, 37 Conn. 216, to "secure the utmost fairness and impartiality, "is considered, that (as is also suggested in that case) the construction which is in furtherance of that object should be most liberal. As before stated, we think the justice should be disqualified at common law, but we need not pursue the subject further than to cite the case of Doolittle v. Clark, 47 Conn. 316, the principle of which decision appears to be applicable to the present case.

We are fully aware that the broad construction which we hare given to sections 672 and 675 of the Statutes may appear to warrant the contention that the mere signing of writs of mesne process, whether of attachment or summons, is within the prohibition of the statutes. Indeed, we are by no means certain that we should hesitate to so hold, provided we felt at liberty to treat the question as of first impression. It would not, however, even be possible to so consider it. The uniform practice of the bar, and of all officers having authority to sign writs, has at all times been, and continues to be, opposed to such construction. The controlling force of such long-continued practice is matter of elementary law. 1 Swift, Dig. p. 12, par. 16; Keyes v. Chapman, 5 Conn. 171; Gould v. Smith, 30 Conn. 88; Nugent v. Wrinn, 44 Conn. 275; State v. Hoyt, 46 Conn. 338; State v. Nyman, 55 Conn. 18, 10 Atl. Rep. 161; Flynn v. Morgan, 55 Conn. 142,10 Atl. Rep. 466; In re Bion, 59 Conn. 385, 20 Atl. Rep. 662. No such practice, so far as we know or believe, affects the consideration of the question now before us. Certainly from the nature of the transaction it would, if it existed at all, be necessarily comparatively very limited. Besides, there may be said, in support of the popular construction as to original writs, that it has always been understood and held that...