Dempsey, Paul L.

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University of Miami School of Law

University of Miami Law SchoolInstitutional RepositoryUniversity of Miami Law Review7-1-1955Civil Procedure -- Jurisdiction -- Habeas CorpusPaul L. DempseyFollow this and additional works at: http://repository.law.miami.edu/umlrThis Case Noted is brought to you for free and open access by Institutional Repository. It has been accepted for inclusion in University of Miami LawReview by an authorized administrator of Institutional Repository. For more information, please contact library@law.miami.edu.Recommended CitationPaul L. Dempsey, Civil Procedure -- Jurisdiction -- Habeas Corpus, 9 U. Miami L. Rev. 482 (1955)Available at: http://repository.law.miami.edu/umlr/vol9/iss4/10CASES NOTEDCIVIL PROCEDURE-JURISDICTION-HABEAS CORPUSPlaintiff, who brought a civil suit for damages on a valid cause ofaction against Chicago City officials under the Federal Civil Rights Act,'was subsequently convicted of certain federal crimes and confined to theUnited States Penitentiary at Alcatraz Island, California. Interrogatorieswere filed by a defendant and stipulation was made to take the plaintiff'sdeposition in Chicago. Petition for a writ of habeas corpus ad testificandumwas denied by the district court and without the plaintiff's presence thetrial was unable to continue. The cause was dismissed. Held, the writ wasproperly denied for lack of jurisdiction under the "all writs" statute.2Edgerly v. Kennelly, 215 F.2d 420 (7th Cir. 1954).A distinction is to be noted between the several types of habeas corpuswrits.8 Habeas corpus ad subjiciendum is the most common4 and is"... the essential remedy to safeguard a citizen against imprisonment byState or Nation in violation of his constitutional rights.",, Habeas corpusad testificandum does not inquire into the alleged unlawful detention ofthe petitioner8 but issues, ". . . for the production of witnesses who areconfined in jail and who are beyond the reach of the ordinary subpoena.The issuance of such writ was at common law discretionary."'The great mass of cases interpreting the habeas corpus statute8 holdthat the writ has no effect beyond the territorial jurisdiction of the issuing1. 17 STAT. 13-15 (1871), 42 U.S.C. §§ 1983, 1985, 1986 (1954).2. STAT. 81-82 (1789), 28 U.S.C. § 1651 (1952), "The Supreme Court and allcourts established by Act of Congress may issue all writs necessary and appropriate inaid of their respective jurisdictions and agreeable to the usages and principles oflaw .......3. 3 BL. CoMM. 129-132; 39 C.J.S. 424-428; 9 HOLDSWORTH, A HISTORY OFENcLiSH LAw 108-125 (3d ed. 1944); Vol. 19, WORDS AND PHRASES (penn. ed.)"Habeas Corpus."5. Darr v. Buford, 339 U.S. 200, 203 (1950).4. Gilmore v. United States, 129 F.2d 199, 204 (10th Cir. 1942); Grieve v.Webb, 22 Wash. 2d 902, 903, 158 P.2d 73, 74 (1945).6. Cuckovich v. United States, 170 F.2d 89, 90 (6th Cir. 1948); United Statesv. Rollnick, 33 F. Supp. 863, 866 (M.D. Pa. 1940).7. Cuckovich v. United States, 170 F.2d 89, 90 (6th Cir. 1948); Bugg v. UnitedStates, 140 F.2d. 848, 850 (8th Cir. 1944); Murrey v. United States, 138 F.2d 94, 97(8th Cir. 1943); 8 WIOMORE EVIDENCE 2199 .(3d ed. 1940); 70 C. J., Witnesses § 64M135).8. 36 STAT. 1167 (1911), 28 U.S.C. § 2241 (1952), "Writs of habeas corpusmay be granted by the Supreme Court, any justice thereof, the district courts and anycircuit judge within their respective jurisdictions" . . . and they "may transfer the applica-tion for hearing and determination to the district court having jurisdiction to entertain it."482CASES NOTEDcourt.9 It has been argued that this jurisdictional limitation is explanatoryof and must be read into the "all writs" statute,'0 because, generally, validexceptions to a statute must be express although certain implied exceptionsmay be made where necessary." Such an express exception seems to beinherent in 28 U.S.C. § 225512 which was created to somewhat limit thewidespread use and abuse of the habeas corpus petition in certain juris-dictions.' 3 Similarly, under a provision of the Bankruptcy Act 4 imprisonedbankrupts are subject to court orders to testify and such orders have runbeyond the territorial limits of the bankruptcy court and produced prisonerstherefrom.' 5 The District Coirt for the District of Columbia was apparentlyprivileged to have writs run outside of the territorial limits of the District.6This jurisdictional problem is often solved by the determination of whohas custody of the prisoner.I'Should the writ of habeas corpus ad testificandum be made an impliedexception to the jurisdictional rule? The usual situation involving the useof this writ calls for the witness to appear and give testimony in criminalproceedings, and on several occasions the writ has issued to bring thewitness from a federal penitentiary into a foreign state. 8 Some cases refusingthe writ have indicated that were there a good reason for the prisoner'sappearance it would be granted.' 9 Still other courts have rationalized refusal9. Abrens v. Clark, Att'v Gen., 335 U.S. 188, 190-193 (1948); McAfee v.Clemmer, 171 F.2d 131 (D.C. Cir, 1948); United States ex tel. Circella v. Neely, 115F. Supp. 615 620-622 (ND. 111. 1953): United States ex rel. Dorsch v. Hunter. 101F. Supp. 751 (W.D. Pa, 1951), aff'd, 196 F.2d 1017 (3d Cir. 1952); United Statesex rel. Smith v. Warden of Philadelphia County Prison, 87 F. Supp. 339 (E.D. Pa. 1949),aff'd, 181 F.2d 847 (3d Cir. 1950); Phillips v. Hiatt, 83 F. Supp. 935, 937 (D. Del.1949); Fiedler v. Shuttleworth, 57 F. Supp. 591, 592 (W.D. Pa. 1944).10. See note 1 supra; Phillips v Hiatt, 83 F. Supp. 935, 937-938 (D. Del. 1949).11. 82 C.J.S., Statutes § 382(b) (1953).12. 62 STAT. 967 (1948); "A prisoner in custody under sentence of a court estab-lished by Act of Congress claiming the right to be released . . . may move the courtwhich imposed the sentence to vacate, set aside or correct the sentence. . . . A courtmay entertain and determine such motion without requiring the production of theprisoner at the hearing .. "13. United States v. Hayman, 342 U.S. 205 (1952); Price v. Johnston, 334 U.S.266, 292-301 (1948); REPORT O' THE JUDICIAL CONFERENCE 22-24 (1943).14. 30 STAT. 544 (1898),, as amended, 11 U.SC. § 53, Order 30 (1952).15. United States ex tel. Marsino v. Anderson, 18 F. 133 (N.D. 111. 1927); In reThaw, 166 Fed. 71 (3d Cir. 1908)(witness would have been produced in court but forhis insanity).16. Noble v. Botkin, 153 P.2d 228 (D.C. Cir. 1946); Downey v. United States,91 F.2d 223, 226 (D.C. Cir. 1937); this privilege was terminated by virtue of Ahrensv. Clark, 335 U.S. 188 (1948); see McAfee v. Clemmer, 171 F.2d 131, 132 (D.C. Cir.1948).17. Ahrens v. Clark, 335 U.S. 188 (1948); United States v. Quinn, 69 F. Supp.488 (N.D. Ill. 1946); 3 .MIAMI L.Q. 52 (1948).18. United States v. Quinn, 69 F. Supp. 488 (N.D. II. 1946); United States ex rel.Patterson v. Brady, 57 F. Supp. 93 (D. Md. 1944); Sanders v. Brady, 57 F . Supp. 87(D, Md. 1944); In re Hamilton, 11 Fed. Cas. No. 5, 976, at 319 (S.D. N.Y. 1867).19. Tatum v, United States, 204 F.2d 324 (9th Cir. 1953); Gilmore v. UnitedStates. 129 F.2d 199 (10th Cir. 1942); Gibson v. United States. 53 F.2d 7218th Cir. 1931); United States v. Chinn, 74 F. Supp. 189 (S.D. W.Va. 1947); Ex partemith, 145 Me. 174, 74 A.2d 225 (1950); 4 MOORE'S FEDERAL PRACTICE § 26.11 pp.1056, 1057.MIAMI LAW QUARTERLYof the writ by saying there was too much possibility of escape;20 or theinconvenience was too great;2 1 or the expense was prohibitive.22 It hasbeen suggested that in view of these considerations, depositions be takenat the place of confinement;23 or that the sworn affidavits made by theprisoner-witness be filed with the court for use in the proceedings.2 4 Quiteobviously, a mere piece of paper precludes the benefit of personal testimonyboth as to the petitioning party and as to the judge and jury.25 Bealestates, "It is*a general rule of law that where one has become subject tothe jurisdiction of a court, the jurisdiction continues in all proceedingsarising out of the litigation such as appeals and writs of error."'20 However,the argument that a district court which puts the prisoner in questionbeyond its territorial limits retains the power to bring the same personagain therein has been refuted.27The decision in this case can perhaps be attributed in part to thesocial stigma attaching to prisons and prisoners, and the consequentreticence of judges to allow the release of convicted criminals for a fewdays even under the most desirous of circumstances. It appears that itwould have afforded a more equitable and reasonable solution to denythe petition on the basis of the court's discretion rather than to sosoundly seal the door by applying the "no-jurisdiction, no-writ" rule; forit is conceivable that a similar situation in the future might demand amore equitable treatment than was allowed in this case.PAUL L. DEMPSEYCONSTITUTIONAL LAW-INDIANS--INTOXICATINGLIQUORSThe defendant was indicted for selling intoxicants to Indians.1 Ageneral demurrer was sustained by the lower courts2 and the state appealed.I-eld: A statute prohibiting sale of intoxicants to Indians is not violative20. Ahrens v. Clark, 335 U.S. 188, 191 (1948); Price v. 'Johnston, 159 F.2d 234236, 237 (9th Cir. 1947); Ex parte Bagwell, 79 P.2d 395, 397 (Calif. 1938).21. United States v, Iayman, 342 U.S. 205, 210-219 (1952); Ahrens v. Clark, supranote 22; Price v. Johnston, supra note 22; Contra, United States v. Quinn, 69 F. Supp.488, 492 (N.D. Il. 1946) (. , . if jurisdiction depends upon the matter of convenience,the convenience of the petitioner far outweighs that of the Goverment or the court).22. Ahrens v. Clark, 335 U.S. 188, 191 (1948); Price v. Johnston, 159 F.2d 234,236, 237 (9th Cir. 1937); Brewer v. United States, 150 F.2d 314, 315 (9th Cir. 1945);Neufield v. United States, 118 F.2d 375, 385 (D.C. Cir. 1941); Ex parte Bagwell, 79P.2d 395, 396 (Calif. 1938).23. State v. Brown, 89 So. 862 (Ala. 1921); Ex parte Bagwell, 79 P.2d 395, 396(Calif. 1938); FED. R. Civ. P. 26(a).24. Murrey v. United States, 138 F.2d 94, 97 (8th Cir. 1943); United Statesv. Chinn, 74 F. Supp. 189, 190 (S.D. W.Va. 1947).25. Price v. Johnston, 334 U.S. 266, 280 (1948).26. 1 BEALE, Tu CONFLICT OX LAWS § 76.1 (1st ed. 1935).27. Hauck v. Hiatt, 50 F. Supp. 534, 535 (W.D. S.C. 1943).1. IDAHO CODE, § 18-4201 (1879).2. Justice of the Peace Court and District Court of Bingham County.

Civil Procedure -- Jurisdiction -- Habeas Corpus

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Civil Procedure -- Jurisdiction -- Habeas Corpus

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