In Re Davenport for a Writ of Habeas Corpus

BELT, J. It is certain that the justice of the peace had no authority to hold court at the place where it is alleged in the petition sentence was imposed on the respondent. Section 949, Or. L., provides : “A justice’s court is a court held by a justice of the peace, within the precinct for which he may be chosen.” In 16 B. O. L. 364 we find: “Where a justice of the peace goes outside of the limits of his jurisdiction and undertakes to hold his *655 court, lie neither has jurisdiction of the subject matter nor of the person; and no waiver or agreement made before him outside of his jurisdiction can confer jurisdiction upon him. Outside of the limits of his jurisdiction he is not a judge. He is no more than any private citizen; and any judgment he gives outside of his jurisdiction, whether by agreement, waiver or otherwise, is no more binding upon the parties than if it had been made before a private individual.” Appellant contends, however, that the question of lack óf jurisdiction was not before the trial court, nor before this court under the issues as made by the pleadings. “On habeas corpus the issue arises on the sufficiency of the return. It may be controverted by demurrer or reply.” Ex parte Wessens, 89 Or. 587 (175 Pac. 73); Merriman v. Morgan, 7 Or. 68; Section 648, Or. L. The return is responsive to the writ, and not to the allegations of the petition for the writ: 12 R. C. L. 1236; Re Moyer, 35 Colo. 159 (85 Pac. 190, 117 Am. St. Rep. 189, 12 L. R. A. (N. S.) 979). The purpose of the petition is to secure the issuance of the writ, and normally it is not to be considered as a part of the pleadings (12 R. C. L. 1231), as it ceases to function when the writ is issued. However, in a summary proceeding — especially where the “answer” was not challenged by motion or otherwise — we believe the trial court was justified in looking to the averments of the petition, where reference to the same was made as above stated to ascertain the cause of petitioner’s alleged illegal imprisonment. Technical rules of pleading should not prevail in a proceeding of this nature the purpose *656 of which is to determine whether a citizen is being unlawfully restrained of her liberty. Furthermore, the district attorney in his brief concedes the fact that the petitioner was sentenced at a time when the justice of the peace was undertaking to hold court beyond the limits of his jurisdiction. The state, in effect, admits that the order of commitment is void, but contends that by reason of defective pleadings the question is not before the court. “Statements of facts made in briefs and such other facts as are legitimate inferences therefrom are to be taken as binding admissions.” 3 C. J. 1448. In Territory v. Board of Commissioners of Bernalillo County, 13 N. M. 89 (79 Pac. 709), it is said: “This statement of counsel in his brief can be considered by us, the same as an admission made in the trial of a case.” The admission of the district attorney as the representative of the state that “the petitioner, Pearl Davenport, pleaded guilty at the courthouse in Prineville before the justice of the peace for Johnson Creek Precinct on the sixth day of October, 1924, both to the charge of selling intoxicating liquor and to the charge of having intoxicating liquor in her possession, and was fined the sum of $500 on each count” ought to be and is accepted by this court as being true. The record before us does not disclose any evidence taken before the trial court, but we cannot presume error: Hill v. McCrow, 88 Or. 299 (170 Pac. 306). Courts are presumed to act within the lawful exercise of their jurisdiction: Subd. 16, Section 799, Or. L. In the absence from the record of any evi *657 deuce, it must be assumed that there was some to support the finding of the lower court: Tyler v. Bier, 88 Or. 430 (172 Pac. 112). The order of commitment is irregular in form in that it applies to two separate and distinct crimes, viz., selling and possessing intoxicating liquor; but it is fundamental that habeas corpus will not lie unless such order be utterly void: Ex parte Foster, 69 Or. 319 (138 Pac. 849), and numerous cases of this court therein cited. . The judgment of the trial court ordering the discharge of the petitioner from her unlawful imprisonment is affirmed. Affirmed.