McLeod v. McLeod , 88 Miss. 722 ( 1906 )

Mayes, J.,

delivered the opinion of the court.

Where a circuit judge or chancellor issues a writ of habeas corpus that is to run in a district other than his own, it must be made returnable to a judge or chancellor in that district, and cannot be made returnable before himself. Section 152 of the constitution of the state provides that “the legislature of the state shall divide the state into convenient circuit and chancery court districts.” In pursuance of this section of the constitution, the legislature has divided the state into chancery and circuit court districts, and in sec. 689 of the code of 1906, merely repeating the law in the code of 1892 on the same subject, it is provided that “a judge shall be appointed for and from, each district.” In sec. 505 of the code of 1906 the same provision is found in reference to chancellors. No circuit judge or chancellor has any power to act beyohd the territorial limits of his district, unless that power is specially given him by statute, and the power to issue a writ of habeas corpus from one district to another, and make it returnable before the judge issuing the writ, in a district other than that in which the writ is to be served, is not given by our laws.

By Code 1906, § 2448, the writ of habeas corpus may be granted by any judge or chancellor, “returnable before himself or any other judge;” but this statute means that the issuing judge can make the writ returnable before himself only in case it is within the territorial limits of the jurisdiction confided to him. If the writ is to run within his district, he may make it returnable before himself or another judge in the same district; but, if the writ is to run in a district other than his own, he must make- it returnable before a judge or chancellor acting for the district in which the writ is to go. We cannot subscribe to the idea that the legislature ever intended that a judge or chancellor should have the power to issue writs of habeas corpus from one district of the state to another and make same returnable before himself, thus bringing parties from one end of the state to the other, entailing great expense, and in many instances imposing great hardship. In a case where neither the judge nor chancellor of the proper district can act, if the writ is returnable in vacation, ample provision is made in Code 1906, § 998, where it is provided that “when the judge or chancellor of any district, by reason of interest or other cause, shall be incompetent to act in any matter in vacation to be done in such district, or before him, or shall be absent from the district, such matter may be brought before and acted on by the judge or chancellor of another district in like manner and with same effect as if done by the judge or chancellor of the district to which the matter pertains.” If, during a term of court, the presiding judge cannot hear the cause, sec. 998 provides for this contingency by authorizing the appointment of a special judge. The record shows no reason for making this writ returnable' before the judge of the sixth district, if it be conceded that he would have the power to make it returnable before him in the sixth district, instead of going into the second district to hear it, where the record showed that both the chancellor and circuit judge of the second district could not act in the matter.

The case of Patterson v. State, 71 Miss., 675 (15 South. Rep., 794), relied on by counsel for appellee, has no application here. In the Patterson case the court merely held that, although Code 1906, § 2456 (Ann. Code 1892, § 2237), provided that “on the application of any person in custody, before conviction upon a criminal charge under the laws of the state, the judge or chancellor shall cause the writ to be made returnable at a convenient place in the county in which the offense is alleged to have been committed,” yet when a party is confined in the jail of a comity other than that in which the offense is committed, and seeks by habeas corpus proceedings to have himself liberated because of impaired health, and because confinement endangers his life on account of ill health, the hearing may take place in the county of his confinement. The court merely said, in this case, in construing the statute: “It was not designed to cover cases like the one at bar, when the dangerous ill health of the prisoner is the sole ground on which tbe application rests.” The question in that case was widely different from the question in this case.

Lei the cause be reversed and remanded, with instruction to the court below to issue the writ of habeas corpus and malee same returnable before a judge or chancellor of the proper district.