Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1869-09-21
THE CURRY DICKENS AFFAIR.
The Application for a Supersedeas
in the Supreme Court.
Opinion of the Court

self discharged from Custody. II this -
SO. we do not wish 10 try abstract qnes-
Col BulIock.-It is so. When the petit
tion for supersedeas was sent to Judge
Hawkins, the Sheriff was in jail; and eX-
Meeting an immediate granting or refusal
of the application, the Sheriii, without
waiting TO hear what that action was. pro-
duced the prisoner, Dickens, before Judge
Foute. 1t appears that Judge Hawkins
neither granted or refused the writ, but
referred the matter to the whole Court.
| OrcOurse the contempt and imprisonment
mart of the case is at an end. | still think
that there is enough of the case left to
raise the question of Judge Foute's juris-
4 5ieli0u. We ask that the order OF Judge
Foute to the Sheriff he superseded.
Col. Bullock then made a lengthy argu-
ment attempting TO show the want Of Ju-
risdictiou in the Judge OF the Municipal
/ Court TO issue the writ. and claiming that
under sections 1888 and S22S Of the code
the supreme Cour could suPersede the
order.
Judge Dixon insisted in reply that
whatever status Sheriff Curry may have
had originally in the case, still by pro-
| ducing Dickens after presenting his petit
| ton ne had lost il, and he now stood SIM
piv in the light of an nformer-3s
having no interest in the matter, but sim
ply saving to the Court that something
illegal was going on. He insisted hat
! the Supreme Court in this proceeding
could not consider the question of the
| jurisdiction Of Judge FOute. With a view
TO Civ Col. Nelson al opportunity 10
speak he cut short, and handed To the
| Court an able printed argument prepared
by Adams, Dixon & Pike.
Hon. 7. A. r. Nelson argued that the
Supreme Court had no Jurisdiction but
appellate; that the Legislature, by the
| Code, never intended to givet h Supreme
Court power TO isste wits in such cases,
but if they aid il was unconstitutional.
After the argument had closed, Judge
Hawkins said, ~supposing the order TO DE
illegal. anti the sheriff has himself been
| affected hv il. bv obedience or refusal, can
he come in cour and ask 10 have il sc.
aside? II 50, cannot every order be nus
brought here?
To this Col. Bullock answered, "OriGi-
ually he was affected by being in jail for
his refusal. As the case now stands, II i
an illegal interlocutorv order, like an or
der Of the Chancellor 10 sell property. IL
is not entirely unlike the ease Of the Reg
istrars before the Court at Brownsville,
where the in~terlOcutory decree OF the
Chancellor dissolving an injunction was
superseded.
Judge Andrews replied that he was on
the bench at the time, and that the queS-
ton as to the power Of the Court 10 issue
EuR NADtlSttAtdn ~ AVA iCAtAE AAE NbAAA
Judge Hawkins then remarked that il
was his own doubts as to the proprieiy of
Issuing writs of supersedeas insuch cases
that decided him TO withhold his fiat and
send the case TO the full court for adjudi-
cation.
The opinion of the Court was delivered
the neNt morning, and is rs follows, Judge
Hawkins delivering il:
OPINION oF II OUR
In the matter Of \. p. Curry.
The petition Of A. p. Curry shows that
such, holds in custody one Thomas Dick
ems. under and by virtue OF q eapias is
sued from the Criminal Court ofAiemphis, |
upon an Indictment for murder. found in
that Court, against said Dickens. Upon
the petition of Dickens, a writ OF h&beaS
corpus was issued by the "dg OF the
Municipal Court Of Memphis. and WAS
served upon Curry, commanding him 10
produce the body Of Dickens before said
Judge, and TO show the cause Of his de-
tention.
Curry refused to produce the body Of
Dickens, in obedience to the writ Of habeas
corpus, claiming that the Judge of Mu-
nicipal Court had no jurisdiction to issue
the writ. Upon this refusal, proceedings
for contempt were had in the Municipal
Court against Curry, who thereupon, on
the 9TH dav of September, 1869, produced
the body Of Dickens before the Judge of
the Municipal Court and made due re-
turn To the writ OF habeas corpus. The
hearing of the ease against Dickens upon
the habaas corpus was then postponed
from the 9th to the 10th of September,
and Dickens was remanded to the custody
Of Curry as Sheriff, who was ordered TO
produce him again before the Judge Of
the Municipal Court on the 10th for fur
Their hearing.
NJ A. . III ~ 80 /
tiOrari isAIe to the Judge of h Munich
pal CourtkO bring up the records in the
cause, anAthat the order requiring him
to prOduE the body Of Dickens before the
Judge of that Court may be superseded.
1t is admitted that the proceedings
against Curry for contempt are at an end,
and are not now before as for discussion
decisions.
The time at orr disposal will admit Of
nothing more than an informal statement
of decision. The petition must be
denied.
We cannot in q proceeding of this ma
ture inquire into the right Of the Munich
pal Cour TO issue the writ of habeas cor
pus ia this case. II the Judge had DO jul
Tisdiction 10 issue such a writ, b is OF
course void; but no appeal, writ of error,
or ceriiorari will lie 10 his action in the
His authority TO issue the writ
in certain eases is conceded, even
If that authority does not extend to any
ease in which such a writ is proper, AZ 10
which We make no decision. Ii The
prompt action ofihc writ can be arrested
in one case by the action of the appellate
IL can be arrested in any ease, and
the sacred right Of habeas corpus would
a mere illusion. II the party impris-
oned can be allowed to appeal to 4 SUI
preme Court or Judge, the party impris-
him can have the same right Of ap-
r.aaN d. and Tins - NxrnFHNA VunH-F tHrH That the |
party held in illegal custody would be
DELAYED Of release until the case could
" drag It's slow length along" through
the successive courts 10 its ulti-
mate and remote rest in the court
last resort after months or years Of de-
lay. State vs.. Galloway. 5Coi. S33. state
". Malone, 8 Sneed, 4i0. Lea ". White,
I Sneed, -.
Another objection to granting the pray
or of this petition is that the Sheriff haV-
the custody of the prisoner. and TO
whom the writ of habeas corpus is direct-
ed, i motif in a situation that entities him
to raise the question ~ To the validity Of
the writ in this form before his Cont. 1t
* true that il the writ is void for want Of
Jurisdiction in h officer issuing it, the
Sheriff j. not bound 10 obey il; and that
be must act AT his peril whether he obey
Ir disobey il. but his peril the officer
Encounters with every writ which he exc
We cannot assume the functions Of
determining in advance, for the officers Of
the law, what process they NAV safely eN-
acute aud what they may, with impunity,
disregard. The Sheriff is merely sn exec
ltive officer of the Court. The writ Of
nabeas corpus IS directed TO him, and, ike
4 writ Of attachment, repleVin or cxecu- I
lion, is a mandate requiring him TO per- !
form a certain act, and he has no such in
.erest i'm the process in his hands or di- A,
rected to him, or in the prisoner b. his
custody, as entities him to hring the writ :
By certiorari 10 the appellate Court, in :
)rder % determine IN advance its validity. =
GEO. ANDREWS, Judge. :
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