1. When a sheriff, in obedience to a writ of habeas corpus,
makes a proper return and brings his prisoner before the court
which issued the writ, the safekeeping of the prisoner while he is
before it is entirely under the control and direction of the court
to which the return is made. The sheriff is accordingly not
responsible for escape of the prisoner while thus in the custody of
the court and before a remand or other order placing new duties on
him.
Page 79 U. S. 401
2. Where the record shows that the case of a plaintiff is
inherently and fatally defective, a judgment against him will not
be reversed for instructions however erroneous.
MR. JUSTICE SWAYNE stated the case and delivered the opinion of
the Court.
The plaintiff in error sued Edward Brinkman, as survivor of his
late partner, Smid, in the Circuit Court of Grant County to recover
a large sum of money alleged to be due from Brinkman, as such
survivor, to the plaintiffs. After the institution of the suit, the
plaintiffs applied to the County Judge of Grant County for a writ
of
ne exeat against Brinkman. The writ was accordingly
issued and placed in the hands of Clise, the defendant in this
action, as the sheriff of that county for execution. Pursuant to
the writ, Clise arrested Brinkman, who, failing to give bail as
required, was held in custody. A writ of habeas corpus was issued
by the Honorable John T. Mills, the circuit judge of that circuit,
directed to the Sheriff of Grant County, whereby he was commanded
to have before the judge, at Dodgeville, on the day therein
specified, the body of Brinkman, with the cause of his
imprisonment. Clise complied with this order. While the argument
upon the writ of habeas corpus was in progress, Clise put Brinkman
in the charge of Judge Dunn, one of his counsel, and absented
himself. Before the argument was concluded, Brinkman fled to Canada
and has not returned. The judge refused to take any further action
in the case in the absence of Brinkman, and thus the proceeding
terminated.
This action was brought by the plaintiffs in error against Clise
for the escape of Brinkman. The cause was put at issue by the
pleadings of the parties and was tried by a jury. A verdict was
found and judgment rendered for the defendant,
Page 79 U. S. 402
Clise. The plaintiffs thereupon sued out this writ of error. It
appears by the bill of exceptions found in the record that in two
instances upon the trial, evidence objected to by the plaintiffs
was admitted and exceptions duly taken. The plaintiffs also
excepted to the several instructions given by the court to the
jury. It is insisted that each of these exceptions involves an
error which is fatal to the judgment.
In the view which we have found ourselves constrained to take of
the case, it is unnecessary to consider either of them.
The bill of exceptions purports to contain all the testimony.
The facts that the habeas corpus was issued and that the sheriff
obeyed it by making the proper return and taking Brinkman before
the judge who issued it, are fully proved. The testimony is
uncontradicted. There is no controversy between the parties upon
the subject.
By the common law, upon the return of a writ of habeas corpus
and the production of the body of the party suing it out, the
authority under which the original commitment took place is
superseded. After that time, and until the case is finally disposed
of, the safekeeping of the prisoner is entirely under the control
and direction of the court to which the return is made. The
prisoner is detained not under the original commitment, but under
the authority of the writ of habeas corpus. Pending the hearing he
may be bailed
de die in diem, or be remanded to the jail
whence he came, or be committed to any other suitable place of
confinement under the control of the court. He may be brought
before the court from time to time by its order until it is
determined whether he shall be discharged or absolutely remanded.
[
Footnote 1] We have not
overlooked the statute of 31 Car. II. This doctrine has been
recognized by this Court. [
Footnote
2]
Page 79 U. S. 403
The statute of Wisconsin upon the subject is in accordance with
the common law. It provides:
"Until judgment be given upon the return, the officer before
whom such party shall be brought may either commit such party to
the custody of the sheriff of the county in which such officer
shall be or place him in such care or under such custody as his age
and other circumstances may require. [
Footnote 3]"
The entire responsibility for the safekeeping of the prisoner
under this statute rests with the officer before whom the prisoner
is brought pursuant to the writ.
When Clise, as sheriff, produced the body of Brinkman before
Judge Mills, Clise's duties as the custodian of Brinkman ceased,
and this cesser could be terminated only by an order of the judge
clothing him with new duties and responsibilities. No such order
was made. The flight of Brinkman was therefore in no sense an
escape from the custody of Clise. His custody by Clise, in the
absence of an order from the judge, would have been false
imprisonment. The act of Clise in putting Brinkman in the charge of
Dunn was simply a nullity. He had no authority at that time to do
any act or to give any direction touching the subject.
The plaintiffs in error, according to their own showing, had not
the shadow of a right to recover in this action against Clise.
Conceding, for the purpose of this opinion that the court below
erred in all the particulars complained of, the errors have done
them no harm. Opposite rulings could not have helped them. Their
case was inherently defective. The defect was incurable and
inevitably fatal. When such a defect exists, whether it be or be
not brought to the attention of the court below or of this Court by
counsel, it is our duty to consider it and to give it effect.
[
Footnote 4] This is decisive
of the case before us. The defendant in error is entitled to have
the judgment affirmed, and it is
Affirmed accordingly.
[
Footnote 1]
The King v. Bethel, 5 Modern 19; Bacon's Ab., Title
"Habeas Corpus," B. 13;
Anonymous, 1 Ventris 330;
Sir
Robert Peyton's Case, ib., 346; Hurd on Habeas Corpus 324.
[
Footnote 2]
In re
Kaine, 14 How. 134.
[
Footnote 3]
Revised Statutes of Wisconsin 908, ยง 23.
[
Footnote 4]
Garland v.
Davis, 4 How. 131;
Roach
v. Hulings, 16 Pet. 319;
Patterson v. United
States, 2 Wheat. 222;
Harrison
v. Nixon, 9 Pet. 483;
Slacum v.
Pomery, 6 Cranch 221.