Jackson v. Mayo

34 Ga. 105 | Ga. | 1864

By the Court.

Jenkins, J.

delivering the opinion.

The appellantin this case had been previously enrolled as liable to military service in the Confederate army, had sued out a writ of habeas corpus against the enrolling officer, and on the hearing, had been adjudged liable to that service and remanded to the custody in which the writ found him. He filed his bill of exceptions and appealed to this Court. Pending the appeal, he was arrested by the Sheriff of Washington county, in obedience to a proclamation of the Governor of Georgia, calling the militia into active service. Thereupon, he sued out a writ of habeas corpus against the Sheriff, seeking exemption from the call of the Governor, on the ground that he had been adjudged liable to military service in the army of the Confederate States, and that his appeal from that judgment was still undecided. It is very clear that both these claims of service cannot be at the same time enforced against the same individual. He cannot at the same time fill a place in the Confederate army, and in the militia, in active service.

He had been enrolled as a Confederate soldier, and taken into custody by an officer of that army, from which he was temporarily withdrawn by the execution of the writ of habeas corpus. On the return of this writ, the parties had a hearing, and the result was, that the relator was declared subject to the military service of the Confederate States, and remanded to the custody of the enrolling officer. Immediately upon the signing of this judgment, he was remitted to the status he occupied before the suing out of the writ of habeas corpus, which was that, of an enrolled soldier of the Confederate army. "Was 1ns condition changed anterior to his arrest by the appellee in this case for the purpose of being sent forward to the rendezvous of the State militia? If so, what wrought the change ? Certainly not the bill of exceptions which he filed to the judgment of the Court below, remanding him to the custody of the enrolling officer. This is not a case in which the filing of the bill of exceptions operates as a supersedeas. The judgment .of the Court remains in full force until reversed by this Court. At the precise point of time, then, when xhe appellant was before the Court below in this case, the judgment rendered against him in the first case of habeas corpus, holding him liable to service in the Confederate army, for which he had already been enrolled, should have been considered correct and binding. In this view, there is no escape from the conclusion that the judgment now under review' is erroneous. There is a positive incompatibility between the services to both of which the appellant has been adjudged liable in the Court below.

The judgment in this case is reversed.