State v. Miller

Smith, C. J., (after stating the facts). We are advised that the mandate hás been obeyed, and the prisoner reléased, so that no practical purpose is to be subserved in prosecuting the appeal, whatever may be our opinion as to the action of the Judge in his summary intervention in the case.

It is certainly a singular method, to say the least, of acquiring jurisdiction and directing proceedings in it in a case depending in another Court not of his district, by the issue of the present writ. The obvious course would be suggested to carry up to the jurisdictional Judge the alleged denial by the clerk of the prisoner’s right to a discharge, by whom his error may be corrected, and the prisoner’s demand sustained.

The statute (The Code §2968) is explicit in requiring an imprisoned debtor to apply by petition “ to the Court wherein the judgment against him tuas entered,”

and as this is action in the cause, it must be construed as a proceeding therein. This is plainly the only legal course to be pursued in obtaining relief.

While, however, the prisoner’s enlargement was brought about by a coercion, through an unauthorized order, it is nevertheless a fact accomplished, and the clerk has done, while not using his own judgment, what he had a right and .it was his duty to do in a case where all the conditions of *454 the law are observed, and the correctness of his action, assuming it to be free, is not presented in the present record.

Moreover,.we find no precedent for an appeal from the decision of the Judge acting under such a writ and in such a. case.

The prisoner was under a final sentence, and his exoneration from restraint was sought under an act evidently not contemplating a remedy in this way ;

The Code, §1646. Proceedings under the writ of habeas corpus, which have for their principal object a release of a party from illegal restraint, must necessarily be summary and prompt to be useful, and if action could be arrested by an appeal, would lose many of their most beneficial results. In case where the writ was resorted to for the purpose of determining the custody of minor children, and these became substantially controversies between conflicting claimants, the right of appeal is given by Act of February 15th, 1859, Acts 1858-59, chapter53, and this enactment,is transformed into §1662 of The Code.

It is a significant indication of the legislative intent in giving an appeal in this case only, not to recognize it in other cases. The right to review by means of the writ of certiorari in a class of cases of which cognizance is acquired, but to which ours does not belong, is maintained by the Court in Gatling v. Walton, 1 Winston, 333, but we find no instance of jurisdiction obtained by an appeal.

It has been exercised under the enabling act;

Musgrove v. Kornegay, 7 Jones, 71 . While, then, we cannot sustain the illegal course taken by the Judge in interposing for the prisoner’s relief, the appeal by the State is not within the provision of §1237, and for the other reasons stated cannot be entertained. Dismissed.