Costello v. Palmer, 20 App. D.C. 210

Costello v. Palmer

20 App. D.C. 210 | D.C. | 1902

Mr. Justice Morris

delivered the opinion of the Court:

On behalf of the appellee a motion has been made to us to dismiss the appeal on various grounds stated, which are these:

(1) That the order appealed from is not a final appealable order.

(2) That there is no statute in force in this District which allows an appeal from an order dismissing a petition for the writ of habeas corpus.

(3) That the sections 763 and 764 of the Revised Statutes of the United States, as amended by act of Congress of March 3, 1885 (23 Stat. 437), which authorize and regulate appeals in habeas corpus cases in the courts of the United States, are not in force in this District.

(4) That the appellant, having been enlarged on bail, is not now restrained of his liberty, and therefore is not entitled to the writ of habeas corpus.

We do not regard any of these grounds as well taken. Sections 763 and 764 of the Revised Statutes of the United *218States are net required to give this court jurisdiction on appeal in habeas corpus cases. That jurisdiction was conferred in most ample terms by the statute which created this court, and wherein it was provided “ that any person aggrieved by any final order, judgment or decree of the Supreme Court of the District of Columbia, or any justice thereof, may appeal therefrom to the Court of Appeals hereby created.” And that the order appealed from is a final and appealable order, is very clear. It is the final order in the cause; there is nothing else to be done. That there is something else to be done in the cause in which the appellant was arrested is of no consequence to the decision of this cause. The proceeding in habeas corpus is an independent suit, growing out of the preceding cause, but having no necessary dependence thereon or connection therewith. The final character of the order dismissing the petition in habeas corpus cases, and the appellate jurisdiction of this court in the premises, are amply illustrated by the numerous causes of the kind which have been brought to this court since the time of its creation.

The argument that the appeal should not be entertained, because the appellant has been released on bail, and therefore, as is claimed, is not now restrained of his liberty, is plainly unsound. The appellant may not be in prison; but he is in the custody of the law, and is most unquestionably restrained of his liberty.

The motion of the appellee to dismiss the appeal cannot therefore be allowed.

Passing to the merits of the case, we find that the appellant has assigned four assignments of error. These are in their order the following:

1. That it is apparent on the face of the record that the judgment of the justice of the peace, upon which the writ of capias ad satisfaciendum was issued, is void on the ground that the justice was without jurisdiction to render it, inasmuch as the plaintiff, being a nonresident, had given no bond.

2. That the act of Congress of June 17,1844, under which, as it is assumed, imprisonment for debt, in case of fraudulent *219transfer of property, was authorized, is no longer in force in the District.

3. That, even if the act is in force, the plaintiff’s affidavit does not comply with its requirements.

4. That the act in question does not apply to transfers of real estate, but only to personal property.

1. With reference to the first assignment of error, we may regard as of no consequence the fact that it wrongly recites the requirement of the statute in regard to suits by nonresidents before justices of the peace. The statute does not require any bond to be given, but only “ security for costs and security for costs may be given in other ways than by bond. But assuming the appellant’s objection to be that no “ security for costs ” was given before the justice of the peace in this case, as required by the statute, yet we are of opinion that the objection here is not well founded. The giving of such security was a condition precedent, which the appellant, the defendant in the cause, might have waived, and did in fact waive by his general appearance in the cause. For that there was a general appearance by the defendant is very plain. He appeared on two successive days to request a continuance; and this was not a special, but a general appearance. The fact that he did not afterwards appear at the hearing on the day to which he agreed to have the hearing, assigned, is of no consequence. That was a default, which we may well assume to have been because he had no defense to the suit, and not a failure of appearance.

The precise point here raised was decided by this court adversely to the contention of the appellant in the case of Guarantee, etc., Co. v. Pendleton, 14 App. D. C. 384, following the authority of the Supreme Court of the United States in the case of Railway Co. v. McBride, 141 U. S. 127.

2. Again in the second assignment of error the statute law is wrongly cited. The contention is that the acts of Congress of June 17, 1844 (5 Stat. 678) and February 4, 1845 (5 Stat. 721), under which the writ of capias ad satisfaciendum• was authorized in cases of fraudulent transfer of property to evade the payment of debts, have been repealed *220by tbe now existing code, and in any event bave become obsolete. Tbe acts of June 17, 1844, and February 4, 1845,. could not have been repealed by tbe code; for they bad been repealed twenty-eight years ago by tbe Revised Statutes of the United States relating to tbe District of Columbia by tbe fact of tbe incorporation of the substance of them into' sections 794 and 795 of these Revised Statutes and by virtue of tbe repealing clause attached to that revision. Tbe question is, not whether tbe acts of Congress of June 17, 1844, and February 4, 1845, bave been' repealed by tbe code, but whether sections 794 and 795 of tbe Revised Statutes of tbe United States for tbe District of Columbia enacted in 1874 bave been repealed by tbe code, so far as they apply to tbe present case, or bave become obsolete, as claimed on behalf of tbe appellant.

Tbe proposition that these enactments must be regarded as obsolete, cannot be entertained for a moment. It would seem to be tbe fact that recourse has not often been bad to them; but we cannot regard any act of Congress as obsolete which has been enacted as late as 1874. The only question requiring our consideration is whether and bow far these sections bave been repealed by tbe code which went into' effect on January 2, 1902, while this cause was pending.

That sections 794 and 795 of tbe Revised Statutes for this District were repealed for all future purposes, there ean bé no doubt. Such is tbe effect of tbe first of tbe repealing clauses (section 1636) embodied in the code. This section provides that “ all acts and parts of acts of tbe general assembly of tbe State of Maryland, general and permanent in their nature; all acts and parts of acts of tbe legislative assembly of tbe District of Columbia; and all like acts and parts of acts of Congress applying solely to tbe District of Columbia in force in said District on the day of tbe passage of this act are hereby repealed, except, &c., &c., &c. (tbe exceptions are not here relevant).” But section 1638 of the code provides that “ Tbe repeal by tbe preceding section of any statute, in whole or in part, shall not affect any act done, or any right accruing or accrued, or any suit or proceeding *221had or commenced in any civil canse before such repeal; but all rights and liabilities under the statutes or parts thereof so repealed shall continue and may be enforced in the same manner as if such repeal had not been made: Provided, That the provisions of this code relating to procedure or practice and not affecting the substantial rights of parties shall apply to pending suits or proceedings, civil or criminal.” And by this section undoubtedly the provisions of sections 794 and 795 of the Revised Statutes must be regarded as continued in force for the purposes of the present proceeding which was pending when the code went into effect — unless those provisions must be construed to be matters of procedure or practice " not affecting the substantial rights of parties.”

It is unnecessary here to enter into the discussion of the vexed question how far the legislature may alter, amend, or take away a remedy, without impairing the existing rights of parties, otherwise entitled to have the benefit of the remedy. Nor is it necessary here to hold that the provisions of sections 794 and 795 were not exclusively matters affecting the remedy, and not the absolute right of parties. But conceding that the writ of capias ad satisfaciendum and the proceedings thereunder given by sections 794 and 795 of the Revised Statutes affect the remedy alone, which it is competent for the legislature to alter at its pleasure, yet we find from the express language of section 1638 of the code that not all matters of procedure or practice established or regulated by it were to go into immediate operation on January 2, 1902, but that, as to pending suits, the old procedure, so far as it affected the substantial rights of parties, was to continue in force.

Now, we think that it would be difficult .to find anything in the whole range of procedure and practice that more vitally affects the substantial rights of parties than do the provisions of law in regard to execution and satisfaction of judgments. Rules of evidence may be changed; methods of trial may be modified; the right of appeal may be restricted or taken away; but none of these so affect the substantial rights of parties as to the methods provided for the execution *222of judgments. Coequal, or almost so, with the right to have a hearing, is the right to have execution of one’s judgment; and while certain modes of execution, such as imprisonment for debt, may become abhorrent to the sense of the community, and may be changed or even entirely abrogated, yet, when a statute, which purports to establish new methods of procedure, retains, or purports to retain the substantial parts of the old methods for the suits then pending, it is difficult to see why we should seek to nullify the reservation by refusing to give to it the effect which it was evidently intended to have.

The section 1638 of the code under consideration, is to the effect that, in the matter of procedure or practice, pending suits must be governed by the provisions of the code where the procedure does not affect the substantial rights of parties. The inference is inevitable, indeed the very letter of the code is to the effect, that, where the procedure does affect the substantial rights of parties, the code shall not apply as to the pending suits, but only the old law. The question, therefore, is, whether, as to the proceeding now before us, the right to the writ of capias ad satisfaciendum is such a substantial right as to be preserved by the reservation of the code; and our answer to this question is that we cannot conceive of' any more substantial right in the law of procedure than this.

We are of opinion, therefore, that, so far as it concerns the present suit, the sections 794 and 795 of the Revised Statutes of the United States relating to the District of Columbia were kept in force by section 1638 of the code.

3. The third assignment of error, if we make the correction in it of the proper statutory reference, as already stated with regard to the second assignment, is that, even if sections 794 and 795 of the Revised Statutes for the District are yet in force for the purpose of this present proceeding, yet that the affidavit, upon which the capias ad satisfaciendum was issued, does not comply with their requirements. It is argued that there is no authority shown in Albert H. Wilson to make such an affidavit for the corporation, and that the affidavit is made on information and belief, and is, therefore, *223insufficient. But if this alleged defect or insufficiency in the affidavit is a matter that may be inquired into in this collateral proceeding, about which we need not here express an opinion, the plain answer to the contention is that there is no such insufficiency in the affidavit, as is claimed.

It is objected to it, in the first place, that it is not shown that Albert H. Wilson was authorized as agent to make the affidavit. But Wilson states in the affidavit that he was the treasurer and agent of the company; and as treasurer he was the- financial agent of the company, and as such the most proper person to make the affidavit. The affidavit itself gives prima facie proof of his authority to make it.

In the next place, it is urged that the affidavit is made upon information and belief, and that for this reason it is objectionable. But it will be found upon examination that the affidavit strictly follows the lines of the statute. These are that, if the plaintiff will make oath “ that the defendant or defendants has or have conveyed away, lessened, or disposed of, his or their property, rights, or credits, or is or are about to remove, or hath or have removed, his or their property from this District, as he or she believes, with intent thereby to hinder or delay the recovery or payment of his debts,” etc. A comparison of the affidavit with this statute shows that there is no failure to comply with the requirements of the latter.

4. The citation just made from the statute is sufficient also to dispose of the appellant’s fourth assignment of error, which is that the statute refers to personal property, and not to real estate. We find no warrant for any such construction. The terms of the statute are broad enough to include both classes of property; and there is no reason to be found either in the statute itself, or anywhere else in the law, or in public policy, to restrict its application to personal property. On the contrary, some of the words used, such as “ convey away,” are more appropriate to real estate than to personal property.

We find no merit in this assignment of error.

*224From wbat we Have said it follows in our opinion that there was no error in the action of the court below; and that the order appealed from should be affirmed, with costs. And it is so ordered.