Bell v. McNair

129 S.E. 94, 160 Ga. 853, 1925 Ga. LEXIS 280

Opinion

Hines, J.

1. A judge hearing a return to a writ of habeas corpus may, in his discretion, award the costs of the proceeding against either party, and may order execution issued thereon by the clerk. Penal Code, § 1312.

2. The language of the above section, “the costs of the proceeding,” embraces only charges fixed by statute, as compensation for services rendered by the officers of court in the progress of the habeas corpus cause; and does not authorize the judge hearing the return to the writ of habeas corpus to award against the applicant the attorney’s fees of counsel for the respondent. Davis v. State, 33 Ga. 531; Markham v. Ross, 73 Ga. 105.

3. It follows that the trial judge erred in awarding to the respondent attorney’s fees against the applicant for habeas corpus; and to this extent the judgment of the court below is reversed.

Judgment reversed m part.

All the Justices concur.