31 Mont. 441 | Mont. | 1904
Lead Opinion
delivered the opinion of the court.
Original application for a writ of habeas corpus, and certiorari in aid thereof.
Prom the returns made to the writs it appears that on April 19, 1904, one David Trotter recovered a judgment in a justice’s court .in Silver Bow county against the complainant, Catherine Downey, for the sum of $234.88 and costs; that thereafter on the same day an abstract of the judgment was filed in the office of the clerk of the district court of the co.urity, and the judgment docketed; that an execution was issued by the clerk and placed in the hands of the sheriff for service; that the execution was returned wholly unsatisfied; that immediately thereafter the plaintiff began proceedings sxipplemental to this execution by filing in the district court his affidavit setting forth that the said Downey, the defendant named in the execution, possessed property which she xxnjustly refused to apply toward the satisfaction of the judgment, to-xvit, “an order for $2,000, or the
The complainant was present in court when the order was made. It further appears that, this order not having been obeyed, the court, upon application of the said Trotter, and after an examination of the complainant, adjudged her guilty of contempt, and committed her to jail until she should render obedience to the order by making the payment as directed, and that the complainant is detained in custody under a commitment issued in pursuance of this order. These proceedings w’ere thereupon instituted to secure the release of the- complainant upon the ground that the order was made without jurisdiction.
The contention is made by the • complainant that the order entered on April 22d, requiring her to pay the amount of the
It is argued by the defendants that this order is appealable, and that, such being thé case, any error committed by the court was merely an irregularity or error within jurisdiction, and cannot be reviewed in this proceeding.
That the order directing payment to the clerk out of the moneys to be collected by the complainant was erroneous is apparent when we look to the statute authorizing the proceeding in aid of execution. The proceeding was instituted under Section 1260 of the Code of Civil Procedure. This and the following section specify the circumstances under which the judgment debtor may be required to answer. Under the former this may be done after an execution has been returned unsatisfied. The latter section (1261) is more stringent in its provisions. Under it the examination may be had before the return of the execution, and under some circumstances the debtor may be arrested. Section 1262 permits a person owing the judgment debtor to make payment to the sheriff and receive a discharge from him. Section 1263 provides a procedure to reach property in the hands of third persons, or debts due from them. Section 1264 authorizes the calling of witnesses in order to determine issues of fact arising during any of the proceedings. The order which may be made as to the disposition of property found to belong to the defendant is authorized by Section 1265. The remaining sections of the chapter provide for cases wherein the rights of third parties are put in issue, and for subjecting to the payment
But though all this be true, is the order therefore void, so as to be open to collateral attack in this proceeding ? We think not. No question is made but that the court had jurisdiction of the supplementary proceeding and-of the person of the complainant. It had power to decide'all questions arising upon the hearing, and also to make afterwards an order determining the rights of the parties.
The correctness of the conclusion reached depended upon a correct construction of the statute. If, in applying to it the rules of construction, and endeavoring to ascertain the proper course to pursue, the court fell in error, this was error only in the exercise of jurisdiction, which may not be-reviewed and corrected by habeas corpus. It is well settled that this writ may not be used as a writ of error. (In re Boyle, 26 Mont. 365, 68 Pac. 409, 471; 15 Am. and Eng. Ency. Law, 172.) Under it the only inquiry permissible is whether the court had jurisdiction of the subject-matter and of the parties, and, though during the course of the particular proceeding even gross errors may have intervened, still these do not render the ultimate determination void; nor is the complainant in this case entitled to have her release on the ground that the court directed the application of the property by a mode which the statute does not expressly authorize. Bnder a proper construction of the statute, the chose in action could be applied to the satisfaction of the judgment. The court could have appointed a receiver, and directed him to collect and apply the proceeds so far as necessary. Instead of doing this, it practically made the complainant a receiver for that purpose. If she was not content to abide the determination of the proceeding, it was her right to have the error corrected by appeal or suitable method of review, and not to disobey the order. The principle of the case of State ex rel. Coad v. Judge of Ninth Judicial District Court, 23 Mont. 171, 57 Pac. 1095, is aj>plicable. In that case the district court had issued a writ of mandamus to compel the relator, who was the clerk and re-
The appealable or nonappealable character of the order is not determinative of the question whether the writ will issue. As we have already said, a solution of this quer-4on rests upon an answer to the inquiry whether the order or judgment complained of is -void, so as to be open to' collateral attack.
The result is that the complainant must be remanded, and it is so ordered.
Concurrence Opinion
I concur in the result, and in the order of this court.