Commonwealth ex rel. Scott v. McAleese

Opinion by Rice, P. J., This is an application by J. McD. Scott for a writ of habeas corpus. He complains that he is held in custody by the warden or keeper of the Allegheny county jail under two commitments. One was issued by the Hon. S. A. McCltjng, a judge of court of common pleas, No. 8, of Allegheny county, after a hearing upon warrants of arrest issued by him under the act of July 12, 1842. Prior to this time warrants of arrest had been obtained by other creditors, and the relator had given bond to them conditioned to apply for the benefit of the insolvent laws of the state. He did so apply, and after a hearing court of common pleas, No. 3, committed him for trial on the charge of fraudulent insolvency before the court of quarter sessions of Allegheny county. Up to the present time no action has been taken by the latter court in the matter. Both of these commitments were issued on the same day. The relator’s contention is that the commitments are illegal and void because the statutory provisions under which they were issued have been superseded by the bankrupt law of 1898. The question is one of the highest importance, but before considering it we are called upon to meet and dispose of the objection raised by the creditors, who were permitted to intervene to oppose the present application, that, as the commitments were issued in civil proceedings in which the amount actually in controversy exceeded fl,000, the Superior Court has not jurisdiction. The jurisdiction of the Superior Court within the limits prescribed by the Act of June 24, 1895, P. L. 212, is exclusive, not concurrent with that of the Supreme Court. That is to say, it is not left to the option of the person aggrieved to determine whether the order, decree or judgment of the lower court of [294] which he complains shall be reviewed by the Supreme Court or the Superior Court. Subject to a conditional right of appeal the jurisdiction of the Supreme Court in certain classes of cases has been transferred to the Superior Court, and all jurisdiction not so transferred remains unimpaired. If it be shown, that one court has jurisdiction of the proceeding to be reviewed the other has not, and this is determinable, not by the form of the application made to the appellate court, but by the subject-matter of the proceeding to be reviewed or by the court in which it was had. Subject to certain exceptions, not necessary to be noticed here, the Superior Court has revisory jurisdiction of “ all proceedings of any kind in the court of quarter sessions, or any judge thereof.” Manifestly these were not proceedings in the quarter sessions, nor before any judge acting as a judge thereof. The proceedings were in the court of common pleas and before a judge of the common pleas exercising powers conferred upon him as such. But not every proceeding in the common pleas is reviewable by the Superior Court. In general, the proceeding must involve the possession or ownership of real or personal property, or a right, the value of which can be measured in money, and the value of the property or the amount of money actually in controversy must not exceed $1,000. To say that the present proceedings do not involve such a controversy, but simply the personal liberty of the relator is to state his case out of court. Nor is this contention sustained by the authorities. Neither the commitment issued by Judge MoCltjhg- nor that issued by the court is of the nature of a summary conviction. They are but steps in proceedings to compel the payment of debts fraudulently contracted or payment of which is fraudulently evaded: Gosline v. Place, 32 Pa. 520; Berger v. Smull, 39 Pa. 302; Grieb v. Kuttner, 135 Pa. 281. As the above cited cases as well as Hart v. Cooper, 129 Pa. 297, Morch v. Raubitschek, 159 Pa. 559, and Shoe Co. v. Saupp, 7 Pa. Superior Ct. 480, show, an appropriate, if not the only appropriate, remedy for the review of the action complained of would be by certiorari, or, as now called, appeal. In the cases cited the certiorari was treated as the principal writ and the writ of habeas corpus, if one issued, as ancillary to it. But whether one or the other be treated as the principal writ the object is the same, [295] namely to overturn and annul the orders of the court of common pleas and of the judge thereof in proceedings in which thé amount in controversy far exceeds the statutory limit of our jurisdiction. If the relator had appealed we suppose no one would have any doubt as to the appellate court that would have jurisdiction. The question arises here because of this provision of the Superior Court act: “ The said court shall have no original jurisdiction, except that it may issue writs' of habeas corpus.” But this does not mean that the court may issue a writ of habeas corpus whenever a petition is presented in which the relator complains that he is unlawfully restrained of his liberty. Surely, we would have no power to issue the writ where the relator was in custody under any order, judgment or decree of the Supreme Court. We refer to this simply as an illustration. Numberless others might be given where the principles enunciated in Com. v. Lecky, 1 W. 66, Williamson’s Case, 26 Pa. 1, and Williamson v. Lewis, 39 Pa. 9, would prevent this court from discharging on habeas corpus. The provision under consideration was inserted in the act of 1895 in aid of its revisory jurisdiction and is plainly to be construed with reference thereto. In other words our jurisdiction upon habeas corpus to annul an order, decree or judgment of the lower court is limited by our revisory jurisdiction over them. If an appeal is an appropriate although perhaps not the exclusive remedy, and the Supreme Court would have jurisdiction of the appeal, and we would not, it would seem plain that we could not acquire jurisdiction by issuing a writ of habeas corpus instead of a writ of certiorari. If there were any doubt as to this it is removed by a consideration of the 14th section of the Superior Court act. It reads as follows: “ This act does not apply in any respect to any proceeding unless it is hereinbefore made reviewable by the said Superior Court, but all such proceedings shall continue to be reviewable directly by the Supreme Court in the same manner and to the same extent as is now or may hereafter be provided by law.” In reading this section special emphasis should be laid on the words “proceeding .... hereinbefore made reviewable.” Nothing, it will be observed, is left to implication in defining the jurisdiction of the court. Is the proceeding made reviewable by the act, is the question. If it is, the appropriate writ, whether certiorari or habeas corpus may be issued. [296] If it is not, we cannot make it reviewable in our court by a choice of writs. There was nothing said or decided in Com. v. Gibbons, 9 Pa. Superior Ct. 527, in conflict with the foregoing conclusions. That was a proceeding for contempt in the court of quarter sessions, consisting of' a refusal of a witness to testify in a case involving the right to a public office. As is well shown in the opinion of our Brother Smith, the contempt proceeding, in character and effect, was wholly independent of the proceeding in which it had its origin, and being in the quarter sessions we unquestionably had jurisdiction over it. So in Lizzie Nuber’s Case, 6 Pa. Superior Ct. 420, we issued a writ of habeas corpus and a writ of certiorari to bring up the record, and upon hearing discharged her from custody upon the ground that the sentence and commitment of the quarter sessions under which she was held were illegal and void. Here, however, the proceedings attacked were in the common pleas and by reason of the amount in controversy were not made reviewable in the Superior Court. We are constrained, therefore, to hold that we would have no authority to discharge the relator, even if his contentions as to the effect of the bankrupt law were well founded. The rule is discharged.