Ex parte Dixon

1 Utah 192 | Utah | 1875

Emerson, J.,

delivered the Opinion of the Court.

The return to the writ of habeas corpus does not controvert the facts stated in the petition. ’ From the petition and return, it appears that petitioner was arrested at Ogden, in the County of Weber, on an order of arrest made by a Justice of the Peace of Salt Lake City and County, endorsed on a summons issued by him on an indebtedness on a contract.

The summons was issued aud the' order of arrest made oh the 10th day of January, 1875, and the summons was returnable on the 21st .day of the same month, and was served' by a constable of Salt Lake City. A judgment appears to have been rendered in the case, and an execution issued against the person of the petitioner. Being taken into- custody on that execution, she obtained from this Court the writ of habeas corpus to be relieved from that restraint.

The proceedings above mentioned were insufficient to give the Justice of the Peace jurisdiction of the person of the petitioner. The judgment and execution are therefore void. A summons which is accompanied by an order of arrest is required to be returnable immediately. (Sec. 515, Practice Act.

The constable had no authority to servé the summons and order of arrest beyond the limits of Salt Lake County. .

Relief may be had by habeas corpus from imprisonment or restraint under a void judgment. (Hurd on Habeas Corpus, pp. 332, 344; Howard v. People, 3 Mich. 207; People v. Cassels, 5 Hill 167; Ex parte McCullough, 35 Cal. 97; Ex parte Large, 18 Wall 162).

The proceedings, under which the petitioner is held, being void, she must be discharged. And it is so ordered.

McKean, C. J. and Boreman, J., concurred.