609 S.W.2d 125 | Ky. | 1980
This is an appeal from an order of the Court of Appeals of Kentucky dated July 29, 1980, denying appellant’s “Petition for Prohibition and Writ of Habeas Corpus.” Appellant discusses certain criminal proceedings which are not pertinent to the disposition of the present action. We shall relate only those facts which we find appropriate to the issues presented.
Appellee Raymond Schultz, Jr., is the jailer of Montgomery County, Kentucky, and appellee Caswell P. Lane is the circuit judge of the 21st Judicial District for the Commonwealth of Kentucky. Neither of the appellees has responded to appellant’s petition; consequently, we will accept the allegations contained therein as true.
Appellant was formerly married to Betty Farmer Griffith, to which marriage was born one child, Troy Lee Griffith, III. On March 19, 1980, a petition for the dissolution of the Griffith marriage was filed in the Lee Circuit Court. On April 1,1980, an order was entered in the Lee Circuit Court
On June 30,1980, the appellant filed a document styled “Petition for Prohibition and Writ of Habeas Corpus” in the Court of Appeals of Kentucky. It took on the complexion of a two-pronged attack on the propriety of appellant’s incarceration. The designation given to this pleading is somewhat cumbersome, at least novel. However, the nature and legal effect of a pleading will be determined by its substance rather than by mere linguistic form. Cargo Truck Leasing Company v. Piper, Ky., 394 S.W.2d 472 (1965). Appellant sought to invoke the aid of the writ of habeas corpus and, in addition thereto, asked the Court of Appeals to exercise its original jurisdiction so as to control the action of the circuit judge.
Habeas Corpus
We will approach the habeas corpus issue by first referring to KRS 419.020, which provides that:
“The writ of habeas corpus shall be issued upon petition on behalf of anyone showing by affidavit probable cause that he is being detained without lawful authority or is being imprisoned when by law he is entitled to bail. The writ may be issued by any circuit judge on any day at any time and his power to issue such writs shall be coextensive with the commonwealth.”
The jurisdiction for the issuance of a writ of habeas corpus is in the circuit court and not in the Court of Appeals. The writ of habeas corpus is a constitutional protection against illegal restraint, its purpose being to regain liberty of a person who is being illegally restrained. Boss v. Wingo, Ky., 433 S.W.2d 137 (1968); Day v. Caudill, Ky., 300 S.W.2d 45 (1957). When appellant regained his freedom, his habeas corpus proceeding became moot. Hinton v. Byerly, Ky., 483 S.W.2d 138 (1972).
So much of appellant’s pleading as pertains to the issuance of a writ of habeas corpus was properly denied by the Court of Appeals.
Petition for Prohibition
Next we approach the issue of the propriety of the Court of Appeals in refusing to exercise its original jurisdiction so as to control the action of the appellees.
Insofar as the appellee Schultz is concerned, there are two reasons why we must concur with the action of the Court of Appeals. First, the appellant is now free from custody and the question has become moot and, secondly, the relief from incarceration by a circuit judge is properly directed at the control of a judicial officer, not a nonjudicial officer such as the jailer. City of Danville v. Wilson, Ky., 395 S.W.2d 583 (1965).
We next turn our attention to the propriety of the refusal of the Court of Appeals to act so as to control the action of the circuit judge. The basis for prohibition
We note that the trial judge held the appellant in contempt of court prior to affording him an opportunity to present his evidence on the issue of whether he had failed to comply with the April 1, 1980, order of the Lee Circuit Court. The trial of this issue was continued from June 20,1980, to July 3, 1980. We assume, there appearing nothing to the contrary, that the issue was fully heard on July 3, 1980. It would serve no useful purpose to return this case to the circuit court for a trial on the issue since there is nothing in the record to disclose that it has not already been tried. The appellant, if he is now dissatisfied with the decision of the trial court on the adequacy of his response to Betty’s motion, can have it reviewed by the Court of Appeals. Ky. Constitution, Section 115.
The Court of Appeals properly denied appellant the relief which he sought.
The action of the Court of Appeals is affirmed.
All concur.