Summary
In Bateman it was held that since habeas corpus is an extraordinary procedure, the mandatory provisions of the statute relating thereto must be complied with by a petitioner.
Summary of this case from Ussery v. AveryOpinion
Opinion filed May 4, 1946.
1. HABEAS CORPUS. "Habeas Corpus" is a high prerogative writ of common-law origin, which furnishes an extraordinary remedy to secure the release, by judicial decree, of persons who are restrained of their liberty or kept from the control of persons entitled to their custody, which issues as a matter of right, but not as a matter of course.
2. HABEAS CORPUS.
Since habeas corpus is an extraordinary procedure, the mandatory provisions of the statute relating to petitions for writ of habeas corpus must be complied with before the writ can legally issue (Code 1932, sec. 9676(3, 4)).
3. HABEAS CORPUS.
The Code provisions that petitions for writ of habeas corpus shall state that it is the first application for the writ, or, if previous application has been made, a copy of the petition and proceedings thereon shall be produced or satisfactory reason given for the failure to do so, and that the petition shall show that the legality of the restraint has not already been adjudged upon a prior proceeding of the same character, are mandatory (Code 1932, sec. 9676(3, 4)).
4. HABEAS CORPUS.
A petition for writ of habeas corpus to regain custody of a child, not stating that it was the first application for the writ and not showing that the legality of the restraint had not already been adjudged upon a prior proceeding of the same character, was demurrable (Code 1932, sec. 9676(3, 4)).
FROM WEAKLEY.Error to Weakley County Court. — HON. CAYCE PENTECOST, Judge.
Habeas corpus action by Landow Bateman against Mrs. Johnnie Smith, to regain custody of a child alleged to be in custody of its maternal grandmother. From action of trial court overruling demurrer to petition and the decree entered thereon, defendant appeals in error. Decree reversed and petition dismissed.
HOMER W. BRADBERRY, of Dresden, for plaintiff in error (petitioner below).
LUKE HANNINGS and GEORGE C. ROWLETT, both of Martin, for defendant in error.
This action was filed by the petitioner, Landow Bateman, in the county court of Weakley County, seeking a writ of habeas corpus for the purpose of regaining the custody of a small child alleged to be in the custody of its maternal grandmother. The petition was demurred to by the defendant, Mrs. Johnnie Smith, which was overruled; and from the action of the court in overruling the demurrer and the decree entered thereon, the defendant has appealed in error here.
It is insisted by counsel for the defendant upon this appeal that by section 9676, subsection (4), of the Code it is provided that the petition for the writ of habeas corpus shall state that it is the first application for such writ. This section of the Code reads as follows:
"The petition shall state:
. . . . . .
"(4) That it is the first application for the writ, or, if a previous application has been made, a copy of the petition and proceedings thereon shall be produced, or satisfactory reasons be given for the failure so to do."
It is also insisted by counsel for the defendant that by the same section, subsection (3), it is provided that the petition shall show that the legality of the restraint has not already been adjudged upon a prior proceeding of the same character.
The word "shall" is equivalent to the word "must." Home Telegraph Co. v. Nashville, 118 Tenn. 1, 101 S.W. 770, 11 Ann. Cas. 824; State ex rel. v. Burrow, 119 Tenn. 376, 104 S.W. 526, 14 Ann. Cas. 809.
In 25 Am. Jur., Habeas Corpus, Section 10, it is said:
"Habeas corpus is a high prerogative writ of common-law origin, which furnishes an extraordinary remedy to secure the release, by judicial decree, of persons who are restrained of their liberty or kept from the control of persons entitled to their custody. It issues as a matter of right, but not as a matter of course."
Being an extraordinary procedure, the mandatory provisions of the statute must be complied with before the writ can legally issue.
On account of the nature and office of the writ of habeas corpus, we think subsections (3) and (4) of Section 9676 of the Code are mandatory, and the failure of the petitioner to negative these provisions rendered it demurrable.
This being so, we are of opinion that the county judge was in error in overruling the demurrer and his decree is reversed and the petition dismissed with costs.
CHAMBLISS, J., not participating.