146 Wis. 517 | Wis. | 1911
Several interesting questions on the merits are presented in this case and ably argued on both sides. Rut we have concluded that they should not be treated upon this appeal, because the order upon the former habeas corpus is
As appears from the statement of facts, the court commissioner on October 15, 1907, made an order remanding the prisoners to the custody of the sheriff and fixed their bail at $300. The prisoners obtained a review of this order by the circuit court for Milwaukee county and the .court affirmed the order of the court commissioner. The issues in the first habeas corpus proceeding are the same as in the one now before us and the first order remains unreversed or modified. Counsel for plaintiffs in error insists that a writ of error will not lie to the first order because it includes in it the fixing of' bail and therefore is not an order to which sec. 3043, Stats. (1898), applies. This section provides:
“Writs of error may issue of course out of the supreme-court, in vacation as well as in term, returnable to- that court,, to review the order or judgment of any court discharging or-remanding a person brought before it by writ of habeas corpus, or an order or judgment reversing or affirming the order of' any judge or court commissioner discharging or remanding a person thus brought before him, and to review final judgments, in actions triable by jury, except actions for divorce. The proceedings and judgment upon such writs shall be according to the course of the common law and the rules and practice of the supreme court, except as modified by this chapter.”
The nrgnmp.nt of counsel for plaintiffs in error is ingenious, but we think unsound. When the writ of habeas corpus was served the prisoners were detained by the sheriff, and the order made by the court commissioner was based upon the warrant and regularity of the proceedings. The legality of the detention was directly passed upon and the prisoners remanded, but allowed to recognize for 'their appearance. So it was adjudged both by the court commissioner and the circuit court that the detention was legal. This must be regarded
“An order or judgment in a habeas corpus suit is res ad-judicaia as to the persons charged with unlawfully restraining another of his liberty, till reversed in some proper proceeding.” State ex rel. Durner v. Huegin, 110 Wis. 189, 85 N. W. 1046; State ex rel. Gaster v. Whitcher, 117 Wis. 668, 94 N. W. 787.
The main argument of counsel for plaintiffs in error is that habeas corpus proceedings not being subject to review at common law, and the prisoners having the right to sue out successive writs and apply to every judge in the realm for discharge, our statute must be strictly construed, and that, giving it a strict construction, it does not reach the instant case. Counsel contends that, construing the statute strictly, it does not reach a case where, as here, the order remanding the prisoners also contains provision for giving recognizance, and therefore the order is not subject to review under sec. 3043, Stats. (1898). It is said that the statute does not. expressly prohibit the commencement of a second habeas corpus proceeding. But we think the decisions of this court above referred to must be regarded as authority upon the proposition here involved. In State ex rel. Gaster v. Whitcher, supra, at page 673, this court said:
“The conclusion reached in the first instance, whether it be by a judge at chambers or a circuit court commissioner exercising the powers of a judge at chambers, within the jurisdiction of the officer to decide at all, is res judicata till set aside by some subsequent proceeding in the same matter according to the legal procedure for reviewing judicial errors. State ex rel. Durner v. Huegin, 110 Wis. 189, 85 N. W. 1046.”
We are therefore of opinion that the order in the first habeas corpus proceeding is binding upon the prisoners until
It follows that the order appealed from must he affirmed.
By the QouH. — The order is affirmed.
