22 A. 776 | Conn. | 1891
This is a writ of habeas corpus in favor of David Yudkin, and against the sheriff of New Haven County, who made return to the Court of Common Pleas for said county that he held the body of the plaintiff by virtue of two warrants of commitment, issued upon two actions at law, by F. W. Holden, justice of the peace. The hearing was had upon the agreed statement of facts "that at the time of signing the mittimuses said Holden was the bondsman in both actions, that he was then the attorney of the plaintiffs in one of the actions, and that he was not otherwise interested in the suits." The court found that Holden was disqualified and not a proper magistrate, and that therefore the mittimuses were illegal and void, and ordered that the plaintiff be discharged; from which judgment the defendant appealed, both parties signing a stipulation that the case should be argued at this session of this court. A motion to dismiss was filed, on the ground that the defendant Gates could be in no way aggrieved by the judgment, no costs having been taxed against him, being, by the fact that the mittimuses were valid on their face, protected from any action against him for holding the plaintiff thereunder; that he had no natural right to the custody of the plaintiff, and so far as the defendant was concerned the only judgment is that the plaintiff be discharged; that it was to be presumed that all parties whose interests could be affected by the judgment had actual notice and might have availed themselves of their statutory right to be made parties; that, at any rate, in questions of jurisdiction the parties to the record determine the controversy; and that therefore the defendant was not, under the provisions of General Statutes, § 1129, entitled to appeal, and this court was without jurisdiction. It was decided that the question presented by this motion should be argued with the appeal and the decision reserved.
We think the motion should be denied. The statute referred to provides that if either party thinks himselfaggrieved, he may appeal. This language plainly expresses, what we should hold to be the rule had the words "thinks himself" been omitted, namely, that the right to appeal depends upon *428 the fact of being a party, not upon whether it shall finally be determined that the decision is one by which he is aggrieved. Any other construction would involve the decision of the question raised, in a preliminary hearing as to whether it could be raised. The plaintiff does not deny that the defendant is a party. He was expressly made so, and the only one, by the plaintiff himself. If he was not a party, there was none except the plaintiff in the court below. Besides, we think that the sheriff is the real and proper defendant in such cases. It is the universal practice to make him such. It would not be necessary, in order to constitute him a proper party to the action, that he should have a pecuniary interest in the controversy, but it would be easy to see that he has or might have.
Coming to the main question in the case, we think the decision of the court below should be sustained; that Justice Holden was disqualified both by statute and at common law, and was therefore not a proper magistrate to issue the mittimuses under General Statutes, § 3392. By statute, under both sections 672 and 675, being attorney in one case, and the bondsman for non-resident plaintiffs in both, he was disqualified from acting. It was the claim of the defendant that by the word act, as used in these sections, judicial action in the actual trial of the case was meant. But this precise question has been decided otherwise in New Hartford v. Canaan,
As before stated, we think the justice should be disqualified at common law, but we need not pursue the subject further than to cite the case ofDoolittle v. Clark,
We are fully aware that the broad construction which we have given to sections 672 and 675 of the statutes may appear to warrant the contention that the mere signing of writs of mesne process, whether of attachment or summons, is within the prohibition of the statutes. Indeed, we are by no means certain that we should hesitate to so hold, provided we felt at liberty to treat the question as of first impression. It would not, however, even be possible to so consider it. The uniform practice of the bar, and of all officers having authority to sign writs, has at all times been, and continues to be, opposed to such construction. The controlling force of such long continued practice is matter of elementary law. 1 Swift's Dig., 12, par. 16;Keys v. Chapman,
The transaction under consideration is of a different character and not solely ministerial. The statute, section 3392, provides that no person shall be committed to prison without a mittimus. The object of the statute is not material; the requirement is absolute. The mere signing of a mittimus may be as purely ministerial as the signing of a writ of attachment or summons, if that were all; but it is not all. It may be also true that, as applied to a civil action, it is ancillary to the original writ. So indeed is an execution, to which it is much more clearly assimilated than to the original process, for like the execution, and unlike the writ, it is based upon, it presupposes, something in the nature of a judicial act — a judicial, or at least a quasi judicial finding. Every mittimus requires this. Therefore it is that they must be signed, not by a mere commissioner of the court, but by a proper magistrate. Gen. Statutes, § 3392. In 1 Swift's Digest, 607, it is said, speaking of a mittimus of the kind under consideration: — "If the person so attached is unable, or neglects or refuses, to procure bail for his appearance at court, the officer holding him must apply to some justice of the peace, who may grant a mittimus, by which he must commit him to jail." The absolute must, in both instances, relates to the officer; the discretionary or judicial may, to the justice. As above stated, every mittimus requires, as a precedent, a finding. If it issues in a criminal case, it requires a conviction, a binding over for want of bonds, or, *431
when not bailable, on probable cause found, or for want of bonds on appeal taken. If for sureties of the peace, as inIn re Bion,
There is no error in the judgment complained of.
In this opinion ANDREWS, C. J., and SEYMOUR, J., concurred. LOOMIS and TORRANCE, Js., dissented.