135 Pa. 281 | Pa. | 1890
Opinion,
The extent of the revisory powers of this court over all judicial proceedings of subordinate tribunals has been discussed and defined in numerous eases, which are cited and classified by Agnew, J., in Penna. R. Co. v. First German Luth. Cong., 53 Pa. 445, 450, 451. The particular jurisdiction brought before us in the present case, that of a judge issuing a warrant of arrest, under the act of 1842, for fraudulent debt, was carefully considered in Gosline v. Place, 32 Pa. 520, and again in Berger v. Smull, 39 Pa. 302. In the former, Chief Justice Lowbee shows that certiorari and habeas corpus are both appropriate remedies, and may be used separately or together. In that case, the certiorari was the principal writ, and the habeas corpus was issued subsequently for the incidental purpose of admitting the relator to bail pending the hearing of the certiorari, and Chief Justice Lowbie says expressly that the habeas corpus is ancillary only. Berger v. Smull was upon certiorari, and there was no habeas corpus in the case.
In view of these decisions, it is now too late to question the right of the plaintiffs to a review upon certiorari; and the contention that that writ-lies only as ancillary to a habeas corpus cannot be sustained. It is true that both in Gosline v. Place and Berger v. Smull the defendant below had been committed by the judge, and the review of the proceedings was sought here for the purpose of escaping the consequences of the commitment. But the reasoning of both cases shows that this circumstance was not only not important, but was not considered relevant at all in reaching the decision. In Berger v. Smull, as already noted, there was no habeas corpus, and the result of the cases is that certiorari and habeas corpus may be used separately or together; and when used concurrently, the question, which is the principal writ and which merely ancillary, will depend on the facts of the particular case and the nature of the relief sought. The motion to quash this appeal must therefore be dismissed.
While the right to a review or certiorari is clear, it is equally
The learned judge issued a warrant upon the affidavit filed by plaintiffs. The defendant moved to quash the warrant, and after argument the motion was allowed, and the warrant quashed, the learned judge filing of record an opinion setting forth the grounds of his action. This opinion, not being strictly part of the record, is not reviewable here, in the sense that it can be made the basis of decision. But, as matter of information for this court, it confirms the deduction we should, without it, be forced to draw from the face of the record, that there was no hearing and no action of the judge on the merits of the case. We have before us, therefore, a record showing an affidavit sufficient to support a warrant; a warrant, regularly issued, reciting that plaintiffs' have “produced satisfactory evidence of said charges, as is fully set forth in the affidavit; ” and an order quashing the warrant on motion, without a hearing on the facts. Such a record is reviewable here. It is not like the case of foreign attachment, where the validity of the writ depends on an extrinsic fact which can only be heard and determined by the court issuing the writ, and the evidence of which cannot be put on the record, but, like an attachment under the act of 1869, the jurisdiction to issue which must appear in the affidavit which is on the record. An order dissolving such an attachment is not reviewable: Wetherald v. Shupe, 109 Pa. 389, because, as was said by Justice Thompson in McElroy v. Dwight, quoted in the report of Holland v. White, 120 Pa. 232: “We cannot review the action of the court below in quashing the attachment upon a question of fact.” But an order to quash based on a question of law appearing on the record is reviewable on certiorari, as was done in Parks v. Watts, 112 Pa. 4. So here, if the judge had heard the evidence and discharged the defendant, his action would not have been reviewable; but, as the warrant was quashed for matter of law appearing on the record, to wit, that the proceedings, as appears by the affidavit on which the warrant issued, were had in an action commenced by attachment under the aet of 1869, we must consider the question of law thus raised.
The object of the proceeding by warrant of arrest under
The cases cited on behalf of the defendant are not analogous, for they rest on the common-law doctrine that a levy on a fieri facias is presumed to be satisfaction, and therefore there is no debt to support the issue of a warrant. The closest of
The order quashing the warrant is reversed, the warrant reinstated, and procedendo awarded.