Ex parte Strobach

BRICKELL, J. — If the errors in the proceedings of the Circuit Court, which are insisted on by the counsel for the petitioner, exist, we cannot see that they operate to his injury. No remedial writ will be awarded, at the instance of any party, for the correction of errors which are not prejudicial to him. Cushing v. Gay, 10 Shep. 9. All the proceedings of the Circuit Court, contained in the transcript submitted with the petition, seem to be extra-judicial, and incapable of legal injury. The judge of the Circuit Court declares that more persons are employed by the sheriff as bailiffs, than are necessary for the transaction of the business of the court; and directs that thereafter not more than two are necessary to attend upon the [445] sessions of the court, and directs a copy of this declaration to be handed to the Commissioners’ Court. The general law declares that the sheriff must summon three constables to attend on the Circuit Court, and subjects them to a fine, if, without good excuse, they fail to attend. R. C. § 755. A special statute, applicable to the County of Montgomery, authorizes the sheriff to employ as many bailiffs as may be necessary. Acts of 1858-4, p. 245. The object of this statute, doubtless, was, to remove the limitation of number, as expressed in the general law, committing to the sheriff a discretion as to the number he should employ. If, as is suggested might occur, the sheriff, under the pretence of exercising this discretion, should obtrude on the court persons offensive to its order and decorum, or such a number of bailiffs as really obstructed, instead of expediting its business, the court doubtless has an inherent power of protecting itself, by punishing him for a contempt; and by forcing the exclusion of such bailiffs, as it could enforce the exclusion from its presence of any other person, who did not observe its order and decorum. A sheriff is responsible for the acts of those he summons as bailiffs, and we think he should have a large discretion, with which a court should hesitate to interfere, in determining for whose acts he will assume responsibility. If, as has been argued, the sheriff should summon a greater number of bailiffs than was necessary, and thus subject the county treasury to improper and burdensome charges, that is a matter on which the Commissioners’ Court must pass, when to them the claims for compensation are presented. There the question arises, and there it must be determined. The Circuit Court should not, and cannot, undertake to determine that question for them. So much of the order as declares that Nettles is not a constable is wholly unwarranted, if the facts stated in the petition are true, and certainly is not prejudicial to the petitioner. If Nettles has the commission, has given bond, and taken the oath of office, as alleged in the petition, his right to, or vacation of the office, can only be determined in a direct proceeding to which he is a party. The motion is denied.