Perry v. McLendon , 62 Ga. 598 ( 1879 )

Bleckley, Justice.

In July, 1878, Ann Perry and Susan Perry were arrested by the sheriff of Laurens county, in a civil case, and imprisoned in the common jail. Afterwards in the same month, Ann petitioned the ordinary for a writ of habeas corpus, which was granted. There was a hearing upon the merits, her imprisonment was adjudged legal, and she was remanded. On the day this judgment was rendered by the ordinary, both Ann and Susan petitioned the judge of the superior court for a .writ of habeas corpus, which was granted. Upon this writ a hearing was had on the merits, before the judge at chambers, and the imprisonment of both petitioners was adjudged legal, and they were remanded. In August of the same year, both again petitioned the ordinary for a writ of habeas corpus, and the same was granted. At the hearing of this third writ, the ordinary adjudged that the petitioners be remanded, resting his judgment on the two preceding adjudications, and dismissing the writ. At the following term of Laurens superior court, in October of the same year, both again petitioned the judge of that court for a writ of habeas corpios, and it was granted. The hearing was had during term, and the judge reserved his decision for delivery at chambers. He delivered it accordingly at chambers on the 22d of October, ordering and adjudging that the petitioners be remanded. It is to this last judgment, the 'judgment rendered on the fourth writ, that the petitioners except. Thus, from July to October, both inclusive, four several and successive writs of habeas corpus were issued, heard and determined — the first and third by the ordinary, the second and fourth by the judge of the superior court. The first was upon the petition of Ann Perry alone, and was disposed of by remanding her to custody. Each of the other three issued upon the joint petition of Ann and Susan Perry, and all had the same object — were aimed at one and the same alleged illegal imprisonment. The sheriff of the county was the party respondent in each and every of these three joint cases; he was the only party respondent in the first two of them, and though, the jailor was a nominal party with him in the last, the sheriff alone answered for both. In each and every case the custody was admitted, the cause of it as alleged in the petition was avowed (but affirmed in the sheriff’s answer to be legal), the imprisoned ladies were produced, and after a full hearing were remanded by the judgment of the habeas corpus court. Successive judgments on the same matter and between the same parties have been rendered, all of them by courts of competent jurisdiction, and each of them either directly adjudicating the imprisonment complained of to be legal, or applying the bar of a previous direct adjudication of that question. In deciding the second case of the whole series (the first before him), the judge of the superior court entered fully into the legal questions involved in the cause of the imprisonment, ruled the same adversely to the petitioners, and, as a consequence, remanded them to the custody from whence they came. That judgment has never been reversed, nor even excepted to. After it was rendered, the third writ in the series was applied for and granted ; and after an adverse judgment on the same by the ordinary (which also still stands in full force), the fourth writ was applied for and granted. In the sheriff’s answer to this .last, he set up as a bar the judgments rendered in the preceding cases, besides again urging the legality of the original cause of arrest and detention. Can there be a doubt that the bar is effective, inasmuch as judgments on habeas corpus are, in this state, subject to review — by writ of error, if rendered by the judge of the superior court: by certiorari, if rendered by the ordinary ? See 24 Ga., 379.

It would seem from the authorities, or some of them, (see Heard on Habeas Corpus) that where there is no such power of review, there may be one writ of habeas corpus after another ad infinitum. But if there can be a review, is there any reason, especially in civil cases, in which the struggle is between party and party, and not with the king or commonwealth on one side, and the subject or citizen on the other, why the first adjudication, if acquiesced in, should not be final and conclusive ? We can think of none. Such is the general rule of law in other cases, and why cases of habeas corpus should not be included in its application, we cannot perceive or divine. Should the legality of an imprisonment in a civil case forever be and remain an open question, so long as the restraint continues ? Is there no way to close it, and ought there to be none? Is liberty so precious ? There is no such indulgence to anything else, not even to life itself. A single judgment will serve to hang a man, if left to stand unreversed. He cannot have trial after trial to ascertain if he is guilty, and determine whether he is to be executed. One complete trial, fair and legal, will carry him out of the world; and why should it not suffice to keej> him in jail until some new right to a deliverance has arisen ? Is the same alleged right to be investigated over and over, each time afresh, just as if no prior investigation had taken place ? Is the grievance, real or supposed, of a prisoner the stone of Sisyphus which courts can never bring to a place of rest? and if called to lift it up the same hill as often as it rolls down, must they comply? Doubtless there is an obligation to issue the writ of habeas corpus whenever, and as often as, it may be applied for, provided the petition contains the requisite matter, is in due form, duly authenticated, duly presented, and does not show on its face that the imprisonment, though complained of as illegal, is in fact legal. Code, §4012. But when it appears, on the return or at the hearing, that the legality of the imprisonment has already been adjudicated upon a previous writ between the same parties, by a competent tribunal, the production of that judgment is the end of controversy. Further writs may be applied for and issued, but to each and all of them the one valid and subsisting judgment will be a conclusive answer, as to any and all objections to the legality of the restraint which were embraced in the first petition, or which could and should have been embraced in it. The effect of a judgment cannot be avoided by a difference in the pleadings, when those in the first case could and should have been as full as those in the second, though in fact they were not. No party, plaintiff or defendant, is permitted to stand his case before the court on some of its legs, and if it falls, set it up again on the rest in a subsequent proceeding, and thus evade the bar of the former judgment. It -is the body of a case and not certain of its limbs only, that the final judgment takes hold upon. Whoever brings the legality of an imprisonment into question by writ of habeas corpus, should, in the first instance, show as much cause for his attack as he can. He must discharge all his weapons, and not reserve a part of them for use in a future rencounter. He must realize that one defeat will not only terminate the campaign, but end the war.

2. The non-payment of jail fees has not been cause for discharge on habeas corpus since the adoption of the Code of 1863, at the instance of the parties confined. Notwithstanding the inhibition on discharge for such cause, is not brought forward in the Code of 1873, but is noted as repealed, it is not repealed, we think, though since the abolition of imprisonment for debt, its application to actual cases is rare. It applies to the present case.

Judgment affirmed.