Thompson v. Oglesby, 42 Iowa 598

Thompson v. Oglesby

42 Iowa 598 | Iowa | 1876

Adams, J.

Sec. 3452 of the Code provides that “ application for the writ (of habeas corpus) must be made to the court or judge most convenient in point of distance to the applicant, and the more remote court or judge may refuse the same unless a sufficient reason be stated in the petition for not making the application to the more convenient court or judge thereof.”

This case has been argued upon the supposition that, if the said Hannah M. Thompson is not the applicant within the meaning of the statute, the motion for change of venue should have been granted. In our consideration of the case we shall proceed up&n the same supposition.

If the said Hannah JVL Thompson, the person by whom the petition was presented in behalf of the plaintiff, was the applicant, it is conceded that the said Circuit Judge had jurisdiction, and the writ was rightfully issued by him. But the defendant denies that she is the applicant and maintains that the person whose liberty is restrained, is the applicant.

1. HABEAS Corpus: jurisdiciton: nearest court. The statue is by no means clear upon this point. It should be observed, however, that the proper court or judge is not one nearest the residence of the applicant, but the one nearest the applicant. Now if the applicant is the one who presents the petition, the court *600or judge to whom it is presented would necessarily be the. nearest one. The same section provides that if the petition is presented to a more remote court or judge, he may refuse, etc. Yet, as we have seen, the court or judge to whom the petition is presented could not be more remote from the applicant if the person presenting it is the applicant. Again, the plaintiff and defendant, the person restrained and the person restraining, must be presumed to be together. The evidence, if any, showing the legality of the imprisonment would ordinarily be at the same place. If the imprisonment is legal, the defendant should be allowed to show it with the least possible trouble and expense. If the imprisonment is illegal, the person restrained is entitled to his liberty at once. There is no reason why his imprisonment should continue until he can be brought before some remote court or judge, wherever some person may happen to be who desires to present a petition in his behalf. We think the case must be affirmed as to the plaintiff’s appeal, and as to the defendant’s appeal it must be

Reversed.