Johnson v. Eberhart, Sheriff

Hackney, J. — The appellant was tried and convicted, before a justice of the peace, of a misdemeanor, and, having appealed from said conviction to the circuit court, his bail procured a copy of the recognizance certified by the clerk of said court, and by virtue thereof had one Starrett to take the appellant and deliver him, with said copy, to the appellee, sheriff of St. Joseph county. The appellant, hf<<, ing been taken and detained in custody by the appellee, sought, in the lower court, the writ of habeas corpus, his petition alleging the facts above stated as the only authority for his detention. The writ having been denied, he appeals to this court, and insists that his detention is without authority of law. The record consists of the petition and the action thereon, stated as follows: "And the petition having been read, the writ is refused for the reason that it appears that the defendant is held for want of bail on a final judgment of a justice of the peace; that his sureties on his recognizance have surrendered him to the sheriff.” It thus appears that no exception was taken to the decision from which the appeal is taken. The statute, R. S. 1894, section 638 (R. S. 1881, section 626), provides that "The party objecting to the decision must except at the time the decision is made.” [211] Filed Jan. 9, 1895. This requirement can not he dispensed with. Fletcher v. Waring, 137 Ind. 159, and authorities there cited. As no question is before us for decision, we can but suggest that under sections 1786 and 1788, R. S. 1894 (sections 1717 and 1719, R. S. 1881), the detention of the appellant, under the circumstances, was expressly-authorized. Clark v. State, ex rel., 125 Ind. 1; Turner v. Wilson, 49 Ind. 581. The judgment of the circuit court is affirmed.