Scott v. Spiegel

67 Conn. 349 | Conn. | 1896

Andrews, C. J.

The Superior Court made certain findings of fact, to which exception is made by the plaintiff. The evidence upon which these findings were made, is certified up in the record. As these were questions of pure fact depending upon the consideration of evidence, we do not understand it is within our power to revise or change them. If, however, it was open to this court to do so, we should be of opinion that the evidence was sufficient to support the conclusions.

We agree with the Superior Court, that the only questions properly in the case were such as were presented by the plaintiff’s answer to the defendant’s return. In the first volume of Swift’s Digest, side page 569, it is stated that in cases of habeas corpus, by the common law, the “ truth of the return cannot be contested, and there is no remedy for the party aggrieved, but an action on the case for the false return, or by information, or indictment in the name of the public.” To the same effect are the authorities cited by the plaintiff on this part of his brief. And Swift’s Digest at the page above noted, adds: “ As the remedy by the common law is very imperfect, it has been supplied in this State by statute.” In 1815 the legislature of this State had provided for pleadings and procedure in cases of habeas corpus, by an enactment, one section of which has been continued without change in every Revision to this time. It is now § 1271 of the Revision of 1888. Thatsection declares that: “ When any statements contained in such a return shall be contested, such court or judge may hear testimony, and examine and decide upon the truth, as well as the sufficiency of the return, and render such judgment as to the law and justice shall appertain.” Since that statute, it has been permissible in cases of habeas corpus for the applicant to demur to the return, to deny it, or to confess and avoid its effect by setting up other facts. A writ of this kind could not, of course, be made to perform the office of a writ of error. Since the passage of that statute, the parties to these writs have been accustomed, whenever they saw fit to do so, to use the liberty of pleading indicated by the quoted section. Hill v. Goodrich, 32 Conn., 588; Macready v. Wilcox, 33 .id., 321; In re Bion, 59 id., 372; Yudkin v. Gates, 60 id., 426; Whalen v. Olmstead, 61 id., 263. Whatever doubt there was, if any, as to the propriety of such procedure in cases of habeas corpus, must now be removed by the Act of 1895, Chap. 326, p. 667, which expressly provides for any kind of pleadings in any case where a mittimus signed by a justice of the peace is made part of the return. And when pleadings are allowed, the rules which govern pleadings, so far as they are applicable, must be observed, and the effect of the pleadings on the question upon which the court is to decide, must be held to have its full force. One of these rules is such that a demurrer to the return and an answer raising an issue of fact, cannot be pending at,the same time. Hoadley v. Smith, 36 Conn., 371, 372; Hotchkiss v. Hoy, 41 id., 568; Brainard v. Staub, 61 id., 570. Another is, that the plaintiff, having presented an issue of fact upon the return, cannot raise any question as to its legal sufficiency. Adams v. Way, 32 Conn., 160; Morehouse v. Northrop, 33 id., 380, 387 ; Hoadley v. Smith, supra; Healey v. New Haven, 49 id., 394.

Applying these rules to this case, and regarding the questions of fact as settled, the only remaining question presented by the return is whether or not the justice of the peace had power to issue the mittimuses ten days after the plaintiff had been sentenced; the justice court at which he had been convicted having meantime been adjourned without day. It is found that all the proceedings before the justice up to and including the sentences, were regular and lawful. So that the question is: Did such delay operate to deprive the justice of power to issue the mittimuses ? Stated in another way the question might be: Did that delay operate to exempt the plaintiff from being compelled to comply with these lawful sentences which had been pronounced against him?

“ A justice of the peace is a judicial and ministerial officer. He performs judicial duty in the trial of causes, and ministerial duty in recording his judgments. He is both judge and clerk of his courts. His duties as recording officer are similar in every respect to those performed by clerks of the higher courts. The only difference in the cases consists in the sources of knowledge that they have of the judgments that have been rendered which they are required to record. . . . . But differences in the sources of knowledge, in this respect, make no difference in the character of the duties they perform.” Smith v. Moore, 38 Conn., 105, 109. It is very likely true, that when the justice court was adjourned without day the judicial officer could no longer act. But the ministerial officer remained, and might do any act which such an officer could lawfully do. As clerk of his own court this justice of the peace had powers entirely analogous to the powers which the clerks of the higher courts have. A mittimus after conviction is, in criminal eases, similar to an execution after judgment in a civil case. It is final process. It is the carrying into effect the judgment of the court. The clerk of the Superior Court has power to issue a mittimus after the term of court has adjourned, to carry into effect an order made by the court while in session. Taintor v. Taylor, 36 Conn., 242. A clerk of the Superior Court can issue an execution in a civil suit at any time while the judgment remains unsatisfied. A justice of the peace may in like manner, as the clerk of his own court, issue an execution on any judgment which he has rendered, or an alias or pluries exeeution, at any time so long as the judgment remains in force and he continues in office. In respect to the power of a court to issue a mittimus at a date subsequent to the sentence, Swift’s Digest, vol. 2, side page 416, says: “ So where the defendant is present when the verdict or judgment is rendered against him, though the court should not order him into custody, and he is suffered to go at large, yet they may at any time afterwards issue a warrant to commit him for the nonpayment of the fine and costs; for the defendant is taken into or retained in custody solely for the purpose of enforcing the payment of the fine and costs. When that is not necessary the court may at discretion permit him to go at-large, and can then as well issue a warrant against him for the fine and costs as if he were in actual custody.” This language is intended doubtless to apply to the higher criminal courts. Whether the same rule would apply to a justice court to the same extent, we need not decide. But we have no doubt that a justice of the peace may, within any reasonable time after conviction and sentence, issue a mittimus to carry into effect his judgment, even though his court has been adjourned without day; Taintor v. Taylor, supra; Gano v. Hall, 42 N. Y., 67; 12 Amer. & Eng. Ency. of Law, 42 ; and that the time here allowed was not unreasonable.

It should be added that if the mittimuses in the case are in fact defective in form — as the conviction and sentences in the case were regular and lawful — they may, and should, be amended by the justice so as to be made faultless.

There is no error.

In this opinion the other judges concurred.