Pomeroy v. Lappeus

By the Court, Watson, J.: The demurrer was properly sustained. Under the provisions of our statute relating to the proceeding on habeas corpus the return is a pleading, and is to be construed and have the same effect as in an action. (Section 619, Civil Code.) The reference to the city ordinance by number, title and date of enactment only, was insufficient. If ot recited in full, at least the provisions of the ordinance of v lich the acts attributed to the respondent were alleged to be a violation, should have been recited. The want of such ¡ legations in the return rendered it fatally defective on gene: tl demurrer. (Harker v. Mayor of New York, 17 Wend., 199; People v. Same, 7 How. Pr., 81.) The principal portion of appellant’s argunr it upon the hearing related to the validity of the city ordin nee; but no such question arises upon the record before us, a d we cannot consider or express our opinion on it. The reco 1 only shows that the court below held the return insufficient ipon general demurrer. We think the decision was correct, and it is i material to [365] the determination here whether the reasons for that decision were sound or otherwise. But it was claimed by appellant, at the hearing, that the statement in the return, that the respondent had given bail and been discharged after service of the writ, but before the return was made, alone rendered the return sufficient on general demurrer. We are unable to discover any sound basis for this proposition. The circuit court acquired jurisdiction to examine into the cause of respondent’s imprisonment, and to either remand or discharge him, according to the facts disclosed upon such examination, and the law applicable thereto, as soon as the writ was served on the appellant, having the respondent still in his custody. Thereafter the appellant was bound to detain him in his custody upon that writ, subject to the orders of the court from whence it issued. The respondent might have become legally entitled to his discharge from, the original detention and imprisonment, after the service of the writ in the habeas corpus proceeding, but in contemplation of law he was then in custody upon that writ, and the power to discharge him had vested in the tribunal issuing it. Without the sanction of that tribunal, neither of the parties could by any* act of his own simply, oust it of its jurisdiction to make a final order in the case. It could not make any difference in the determination of the case, that the appellant disclaimed having the respondent in his custody, in his return to the writ. It showed that he was present in court at the time, in person, and subject to its orders. Besides, the respondent had a right to insist on a final adjudication in that proceeding. It was capable of affording other benefits and advantages besides a simple release from confinement at the time. Questions finally determined in it could not be re-examined upon any other proceeding by habeas corpus. (Civil Code, section 639.) And the respondent’s immunity from future arrest and imprisonment under the same authority, could [366] only be secured by a final order declaring such authority illegal and invalid. No error appearing from the transcript, in any of the particulars assigned by appellant, the order-appealed from is affirmed. Judgment affirmed.