State ex rel. Barnes v. Barnes ( 1871 )

By the Court

Berry, J.

Section 48, ch. 81, Gen. Stat. enacts, that “ Every writ of habeas corpus * * * shall be under the seal of the court.”

The pretended writ in this instance was issued by the court commissioner under his own hand and official seal, and not under the seal of any court. It was, therefore, quite unauthorized, and was no more a writ of habeas corpus, in any proper sense, than if it had been issued by a constable. The whole proceedings should have been dismissed.

The case of State vs. Hill relied upon by the court below, and by respondent’s counsel here, is not an authority for the practice adopted in this case.

In the first place, the question as to the power of a court commissioner to issue the writ of habeas corpus, in distinction from allowing or granting it, is not discussed by counsel, nor considered or determined by'the court in State vs. Hill.

In the second place, even if the statutes in force when the decision in State vs. Hill was made in 1865, would have permitted a commissioner to issue the writ, sec. 48 above cited, and enacted in 1866, permits it no longer.

The order appealed from is reversed and the whole proceedings dismissed.