
    The People ex rel. Ruth R. Catlin and ano. v. Charles T. Tucker, Deft.
    
      (Supreme Court, Special Term, Erie County,
    
    
      Filed November 28, 1888.)
    
    1. County court—Power to issue writ or habeas corpus—Special proceeding.
    A county court is a court of record; and a county judge has the power to issue a writ of habeas corpus upon a petition of a prisoner alleging that his arrest was illegal, and to enter an order discharging the prisoner from arrest. 1 It. S. (6th ed.), 392, § 27. And such a proceeding is a special proceeding within the contemplation of the Code.
    2. Same—Certiorari—When cannot be issued—Code Civil Pro. 88 2121-3122, 2058.
    A certiorari cannot he issued to review the order of a county judge discharging a prisoner on a writ of habeas corpus, nor to review an order entered in a special proceeding hy a court of record or a judge of a court of record (§ 2121 of the Code); nor to review a determination which can adequately he determined hy appeal (§ 2122 of the Code), nor to review a final order made by the return to a writ of habeas corpus discharging or remanding the prisoner or dismissing the proceeding (§ 2058 of the Code).
    3. Same—When certiorari may be issued—Code Crv, Pro., § 2120.
    A certiora/ri may he issned only where the right to it is expressly conferred or authorized by statute, or where it may he issued at common law hy a court of general jurisdiction, and the right to it is not expressly taken away hy statute.
    3. Same — Appeal —Prom final order upon return of writ of HABEAS CORPUS—CODE ClV. PRO., § 2058.
    By section 2058 an appeal may he taken from a final order made upon a return of a writ of habeas coipus to discharge or remand a prisoner or to dismiss the proceeding. A certiorari cannot he issued in such a case.
    Motion for a writ of certiorari to review the decision of the special county judge of Chautauqua county by which he discharged the respondent from imprisonment.
    
      C. R. Lockwood, for motion; N. H. Hill, opposed.
   Daniels, J.

The respondent Tucker had been sued in an action brought before D. D. Woodford, a justice of the peace, by the applicant to recover a sum of money. The summons in the action was personally served, but the respondent Tucker, who was defendant in the suit, failed to appear, and the plaintiffs presented their complaint to the justice, alleging the purchase by him of ten barrels of floor for the price of $51.75, and that this purchase had been made and induced by means of false and fraudulent representations made by Tucker to these relators, the plaintiffs in this action. The trial took place, which was followed by a judgment in favor of the plaintiffs, upon which an execution was issued against the property of Tucker, and if sufficient personal property could not be found, then against his body. He was arrested under this execution, and a writ of habeas corpus was issued by the special county judge upon a petition alleging this arrest to have been illegally made. The special county judge had the authority to issue the writ and review the legality of this arrest. 1 R. S. (6th ed.), 392, § 27.

But the objection to the application has been taken that the decision discharging the defendant in the action could only be reviewed by an appeal from the order. And that objection appears, under the provisions of the Code of Civil Procedure relating to the case, to be well founded. For by title 5, chapter 12, of this Code an appeal has been provided for from orders made in special proceedings, and this was a special proceeding. This appeal has not been confined to orders made by a court in the course of the proceedings, but by section 1357, it has been authorized “ from an order affecting a substantial right made by a court possessing original jurisdiction, or a judge thereof, or before a judge thereof, pursuant to a special statutory authority.”

This language includes the order now in controversy, for it was made by a judge in this manner referred to. And that it was intended so to be understood and applied, appears further by section 2121, declaring that a writ of certiorari cannot be issued to review a determination made after the article containing this section takes effect in a "special proceeding by a court of record, or a judge of a' court of record. And the county court is a court of record. It has been further declared by the section immediately preceding this one, that the writ can only be issued where the right to it is expressly conferred, or authorized by statute, or where it may be issued at common law by a court of general jurisdiction, and the right to it is not expressly taken away by statute. And by section 2122 of the same Code it has been declared that the writ cannot issue to review a determination which can be adequately reviewed by an appeal to a court. And by section 2058 of this Code it has also been declared that an appeal may be taken from a final order made upon the return of the writ of habeas corpus to discharge or remand a prisoner or to dismiss the proceeding. This language is so broad as to include this particular case, for a final order was made by the special . county judge to discharge the defendant in the action as a prisoner from imprisonment.

The language is broad and comprehensive, and entirely in harmony with the other provisions contained in the Code which have just been referred to. And it would be a very strange anomaly to be found even in this Code if the legislature had provided for an appeal from any final order made upon a final decision under a writ of habeas corpus, and had prescribed a different remedy for other orders of the same general description. The intent, on the other hand, is to be presumed, in view of the very general provisions, to include all orders made the subject of appeal in this class of proceedings. The provisions seem to be clear and decisive against the success of this application, and the motion will be denied, but without costs.  