Ex parte Millett, 37 Mo. App. 76

Ex parte Millett

37 Mo. App. 76 | Mo. Ct. App. | 1889

Gill, J.

In order to a full understanding of the facts giving rise to this habeas corpus proceeding we refer to the case of “Millett, Relator, v. Field, Judge etc.” It will be seen that on April 3, 1889, Judge Field, presiding over divison number 1, Jackson circuit court, ordered Millett to appear in court, April .8 following, and answer charges of contempt for disobedience of the orders of court made March 9, which commanded said Millett to deliver over the assets of said Ramsey estate to Allbritain, the newly appointed assignee, and to answer the charge of disobedience of order of removal, in that said Millett had, after said order was made, openly defied the orders of the court, had proceeded to act as assignee and had heard and allowed claims on March 18, 19 and 20. On said April 8, Millett appeared in court, filed answer to such charges, a trial was had before the court, and Millett was adjudged guilty of the charges and two separate commitments were made out, and under these Marshal McGowen justifies his custody of the prisoner.

In the one order of commitment the court fully sets, out the facts with the order on Millett to turn over the Ramsey assets, etc., as made March 9, recites too the disobédience by Millett, and thereupon adjudges contempt, and orders Millett’s imprisonment until he obeys said order. In the other order of commitment is found likewise recital of order of removal, and that Millett, in disobedience thereof, had on March 18, 19 and 20 proceeded and allowed claims against the Ramsey estate, and on account of which the court found Millett guilty of a criminal contempt, and adjudged, as a punishment therefor, a fine of fifty dollars and imprisonment for five days in the county jail.

*81This court has no authority, under the law, to .discharge the petitioner. Where a prisoner is “in custody, by virtue of a process from any court legally constituted, such prisoner can only be discharged in one of the following cases: First, where the jurisdiction of such court or officer has been exceeded, either as to matter, place, sum or person. Second, where, though the original imprisonment was lawful, yet, by some act, omission or event, which has taken place afterwards, the party has become entitled to his discharge. Third, where the process is defective in some matter of substance required by law, rendering such process void. Fourth, where the process, though in proper form, has been issued in a case or under circumstances not allowed by-law. Fifth, where the process, though in proper form, has been issued or executed by a person who is not authorized by law to issue or execute the same, etc. * * * Sixth, where the process is not authorized by any judgment, order or decree, nor by any provision of law.” R. S. 1879, sec. 2650.

And further by section 2651 it is provided that “no court, under the provisions of this chapter, shall, in any other matter, have power to inquire into the legality or justice of any process, judgment, decree or order of any court legally constituted, nor into the justice or propriety of any commitment for contempt, made by any court, officer or body, according to law, and plainly charged in such commitment, as hereinbefore provided; but nothing in this section contained, nor any other part of this chapter, shall be so construed as to prevent any prisoner from being discharged when the matter alleged in the order of commitment shall not, in point of law, amount to a contempt.” There can be no question that the petitioner was committed by a process from a legally constituted court, having jurisdiction of the person; that the process is in proper form, and that the commitment contains “the particular circumstances *82of the offense” charged, as required by section 1058, Revised Statutes.

And as we held in the mandamus case (Millett v. Field) there is no doubt but that the matters related in the order of commitment, “in point of law, amount to contempt” as required by section 2651, supra.

As oft repeated by the courts of the country a party cannot use the writ of habeas corpus as an appellate process, and we are not now, in this proceeding, authorized to review the action of the circuit court, to determine thereby if Millett was rightly or erroneously adj udged guilty of contempt. It is claimed, however, in behalf of the petitioner, that the court exceeded its jurisdiction.

There is "no color for this claim, unless it be in that portion of the order which requires Millett to be held in custody until he shall have delivered over all the assets of said Ramsey estate; and since among these assets, it is said there is money, it is claimed that this is an imprisonment for debt, the right to which does not exist in this state. (39 Mo. 285.) Speaking for myself only I am inclined to the belief that in so far as the order of commitment may require Millett to pay over the money belonging to the estate, his imprisonment for a failure so to do would be illegal for the reason urged. Still it seems there are other assets, than money, belonging to said estate, and Millett’s failure to deliver over the same will authorize the court to commit him to jail until said assets, at least, are surrendered as required by the court’s order. Ex parte Crenshaw, 80 Mo. 447.

The fine of fifty dollars and five days’ imprisonment, imposed by the court for the past offense of acting as assignee in allowing claims on March 18, 19 and 20, was within the statutory limit, and hence on that account no complaint can be made. Revised Statutes, 1879, secs. 1055 and 1056.

We repeat liere, as held in the mandamus proceeding, that the efforts made by petitioner to appeal from *83the order of removal did not suspend the order of removal. The case cited from 117 Ill. is wholly inapplicable here.

The petitioner must be remanded to the custody of the county marshal. It is so ordered.

All concur.