99 P. 935 | Or. | 1909
delivered the opinion of the court.
This is an appeal from an order made by the judge of the circuit for the First Judicial District refusing to issue a writ of habeas corpus to inquire into the cause of the imprisonment of John Harrington. From the petition and accompanying documents it appears that in April, 1907, Frances M. Snyder was appointed administratrix of the partnership estate of Victor E. Snyder and John Harrington by the county court of Jackson County; that such court made an order requiring petitioner, as the surviving partner, to deliver and turn over to the executrix the partnership property; that he refused to deliver to her all the property which she claims belonged to the partnership, and in January, 1909, a citation issued from the county court requiring him to appear, and show the cause, if any, why he should not be required to do so. In obedience to this citation, he appeared, and for answer thereto stated that he claimed the property in controversy as his own, and that the title to the same was involved in a suit in equity between himself and the administratrix of the partnership estate, notwithstanding which answer the county court ordered and directed him to deliver to the executrix such property, and that he be imprisoned in the county jail until he complied therewith. A warrant of arrest was thereupon issued, and petitioner arrested and committed to imprisonment. The petition further alleges that, after the order of the county court was made, the petitioner delivered to the administratrix all the property in his possession, which she alleges belongs to the partnership estate, but, notwithstanding such delivery, the sheriff still retains him in custody for the alleged reason that she claims that he did not deliver all such property.
Under these provisions it was, in our opinion, the duty of the judge to whom the petition was presented, to have allowed the writ and required the officer having the custody of the petitioner to make the proper return thereto, so that it could have been determined whether the imprisonment was unlawful either because the order
Reversed with Directions.