| Wis. | Nov 13, 1917
In this case it is held that an order of arrest may properly be issued in a civil action where it appears by affidavit as here that the defendant, while treasurer of a corporation, wrongfully converted moneys of the corporation to his own use and fraudulently misapplied the
This holding makes it unnecessary to decide the question whether habeas corpus is a proper remedy in a case where the warrant has been issued without a sufficient affidavit, or whether in such case a motion to vacate the order under sec. 2715, Stats., is the exclusive remedy. It seems best, however, to make some suggestions as to the practice in habeas corpus cases in view of the unsatisfactory state of the record before us. The case has been treated on both sides as though the habeas corpus proceedings were simply proceedings occurring in the course of the original civil action and the order appealed from an order made in that action. Apparently the whole record in the civil action has been returned here in response to the appeal, and the judgment of discharge as well as the other habeas corpus papers, including the notice of appeal and undertaking, are entitled in the civil action. This indicates failure to understand the nature of a habeas corpus proceeding. It is not a motion in another action; on the contrary it is a civil action of itself, in which the state on the relation of the petitioner is plaintiff and the person charged with unlawfully imprisoning the petitioner is at least one of-the defendants. All parties who are interested in the continuance of the imprisonment are potential defendants and doubtless are entitled to appear and become parties in fact as the plaintiff in the civil action did in the present case. Sec. 3432, Stats. The subject of the nature of a habeas corpus proceeding was fully discussed and settled in the case of State ex rel. Durner v. Huegin, 110 Wis. 189, 85 N. W. 1046.
The proper method of challenging the sufficiency of the petition is by motion to quash the writ, not by demurrer. 21 Cyc. 317. If this motion be overruled, or in the event of no such motion being made, a full return should be made as the statute prescribes, which may be traversed, thus rais
No prejudice to the rights of any party seems to have resulted from the erroneous practice in the present case and the parties are equally at fault, hut it has seemed desirable to point out the errors and indicate the correct procedure in order that such confusion may he avoided in the future.
By the Gourt. — Judgment reversed, and action remanded with directions to quash the writ and remand the relator to custody.