Livingston v. Livingston, 24 Ga. 379

Livingston v. Livingston

24 Ga. 379 | Ga. | 1858

Benning, J.

By the Court. delivering the opinion.

Was the judgment overruling the motion to dismiss the certiorari, right ?

The first ground of the motion was, “Because a certiorari is a creature of our Legislature, and cannot be carried beyond the provisions of the same.”

It is understood, that the meaning of this, is, that none of the Acts of the Legislature, relating to certiorari extend to a habeas corpus case like the present; and that there cannot be a certiorari in any case unless there is some Act of the Legislature to authorize it in that case.

The first of these two propositions, may be admitted, but the second is denied. The Constitution, itself, gives the certiorari. It says, that the Superior Courts “shall have pow*382er to correct errors in inferior judicatories, by writ of certiorari.” Under this grant of power, the Superior Courts might have issued writs of certiorari before any of the Acts of the Legislature as to certiorari was passed; they might now issue writs of certiorari, if no such Acts had ever been passed.

In that case the law to be resorted .to, for regulating the proceedings, would be the old law — mainly the old law relating to writs of error; for every writ of error at common law, included a certiorari. That writ was at once, a certiorari and a commission — at once an order to certify a case to a particular tribunal; anda commission to that tribunal, to hear and determine the matters of error, contained in the case. See Davis vs. Rodgers, decided at Atlanta, Aug., 1857. 22 G.R.

The Court to which this writ of certiorari was directed, was the Inferior Court, or the Justices of the Inferior Court Such a Court, as compared with the Superior Courts is an “inferior judicatory.” 1st, Its jurisdiction is as nothing, compared with that of the Superior Courts. 2d, It is the creature of the Legislature, and the power of the Legislature to create Courts, does not extend to the creation of any Courts,'except Courts of a lower dignity than that of the Superior Courts. This, I think, has been the uniform interpretation of the first sentence of the third article of the Constitution.

[1.] We think, then, that the first ground of the motion, was insufficient.

[2.] The grant of power, is, “to correct errors.” “Errors” is a general term, and therefore, it must embrace errors committed in a habeas corpus case, as well as those committed in other cases. Besides, the judgment in a habeas corpus case, might be adverse to the plaintiff. In case it were there might be a different opinion, as to whether, “the writ of habeas corpus was a protection of liberty.”

We think, then, that there was nothing in the second ground.

*383Obviously, we may say the same, of the third and fourth grounds.

The fifth ground was, “ That this Court cannot pass any •judgment in the case, which can be executed.”

It is said that as soon as a habeas corpus Court of this kind renders its judgment, it expires; and, therefore, that there is, then, no Court which the certiorari ,can be directed to, or which can execute the judgment of the Superior Court rendered on the certified case.

But why should it be admitted, that this Habeas Corpus Court expires with its judgment? The statute is silent, as to when it is to expire. If it expires with its judgment, of what value will the judgment be? Suppose the Sheriff disregards the judgment, what tribunal is there to make him do his duty? None. See Taylor vs. Gay, 20 Ga. R.; Marchman vs. Todd, 15 Ga. R.

It is true, that Heard vs. Heard, 18 Ga. R., seems in conflict with these two cases; but first, that case might have been put upon another ground; there were no merits in it; 2dly, it did not pretend to overrule Marchman vs. Todd, and if it had, it would, itself, have in turn, been overruled by Taylor ■us. Gay.

[3.] We think it not true, then, that this habeas corpus Court expires with its judgment. We think the Court still remains in existence to superintend the execution of that judgment, and therefore, that there is still in existence a tribunal to be reached by a certiorari

Hence, the fifth ground is in pur opinion insufficient.

There is nothing in the sixth ground.

[4.] Nor in the seventh. In a rule against the Sheriff, either party may except,and have a writ of error. This has, repeatedly been held by this Court. And that is as much “ a criminal proceeding,” as this is; so as to proceedings on forfeited bonds in criminal cases.

The truth is, that a commitment under the Act of 1821, is purely remedial. It is for the exclusive benefit of Xho plain*384tiff in the proceeding. Cobh, 591-2. The State has no concern with it.

The eighth and last ground,was, that “the judgmentof the habeas corpus tribunal, was an executed judgment.”

True, that judgment annulled the commitment, and thus deprived the Sheriff of authority longer to hold his prisoner. But ajudgment reversing that judgment, would revive the commitment, and thus restore authority to the Sheriff, to retake, and to hold, the prisoner.

We think, then, that there is nothing in this ground.

Upon the whole therefore we affirm the judgment of the Court.

Judgment affirmed.