Jenkins v. Kuhne

57 Misc. 30, 107 N.Y.S. 1020
CourtNew York Supreme Court
DecidedDecember 15, 1907
StatusPublished
Cited by6 cases

This text of 57 Misc. 30 (Jenkins v. Kuhne) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jenkins v. Kuhne, 57 Misc. 30, 107 N.Y.S. 1020 (N.Y. Super. Ct. 1907).

Opinion

Burr, J.

Upon the hearing of this application, the respondent seemed to be more concerned to discover alleged technical defects in the writ and the proceedings to punish him for disobedience of it than to meet the questions involved upon the merits. The technical questions will be first considered.

The respondent claims the writ to be void for two reasons:

First, That it was not issued under seal, and

Second, That material alterations had been made in it after the writ had been signed by the justice issuing the same.

While the statute provides that such a writ must be issued under the seal of the Supreme Court (Code Civ. Pro., § 1992), the same statute also provides that the omission of rhe seal does not make the writ either void or voidable. Id., [32]*32§ 24. A writ of habeas corpus is a writ to which the petitioner has an absolute right. Id., § 2020. It does not rest in discretion, as does a writ of mandamus, and no special order of the court is required before it issues.

The facts with regard to the alterations in the writ are undisputed and are substantially.as follows:

Counsel for the petitioner in these proceedings anticipating that, earlier in the day, one John 0. Jenkins, Jr., might be indicted by the County Court, and anticipating that an effort might be made to photograph and" measure him, while in the custody of the County Court and waiting the adjustment of bail, prepared a typewritten petition for a writ of habeas corpus and also a writ requiring the persons having the custody of the body of John Gr. Jenkins, Jr., to produce him forthwith and immediately upon the receipt of the writ, before the justice issuing the same. The said John Gr. Jenkins, Jr., was arraigned, admitted to bail and discharged ; and no attempt was made to interfere with him. When the person of Frank Jenkins was seized under the circumstances hereinafter set forth, his counsel took the typewritten paper, previously prepared, and in the petition struck out the words “ John G,” before the word “ Jenkins,” and wrote in the word “ Frank,” with a pen, and struck out the word “ Jr.,” after the word “ Jenkins.” This petition was then verified.

In the writ, in the mandatory part thereof, he struck out the word “ John G.,” before the word “ Jenkins ” and inserted the word “ Frank,” struck out the word “ Jr.,” after the word “ Jenkins,” and, in the closing part of the writ, again struck out .the same words and inserted the word “ Frank.”

All this was done before the writ was submitted to the justice for signature. When signed, the writ read as follows* “ People of the State of Mew York. To the police officers or other persons in charge of John G. Jenkins, Jr.: Wé command you that you have the body of Frank Jenkins by you imprisoned and detained, as it is said, together with the time and cause of such imprisonment and detention, by whatsoever name the said John G. Jenkins, Jr., is called or charged, before me, a justice of the Supreme Court, forth[33]*33with, and immediately, upon the receipt of this writ at my Chambers in the Count House in the Borough of Brooklyn, City of Hew York, to do and receive what shall then and there be considered concerning the said Frank Jenkins, and have you then and there this writ.”

At the police headquarters, one of the counsel for Frank Jenkins observed the failure to change the words “ John G.,” to “ Frank ” in the salutation clause of the writ and also in the middle of the writ following the words by whatsoever name the said ” and preceding the words is called or charged.” Taking a pen in the presence of the respondent, he changed these words in the writ so as to make the language of the writ consistent throughout.

These latter changes in the writ were not necessary. If the salutation clause of the writ had read simply “ People of the State of Hew York. To the Police Officers,” it would have been quite sufficient. The person upon whom the writ is served is deemed to be the person to whom it is directed, although directed to him by a wrong name or description, or to another person. Code Civ. Pro., § 2024.

The mandatory clause of the writ commanded the person upon whom it was served to have the body of Frank Jenkins before the justice issuing the writ, to do and receive what should then and there be considered concerning the said Frank Jenkins. If the words “ by whatsoever name the said John G. Jenkins, Jr., is called or charged ” had been entirely omitted, the writ would have been a good writ for the production of Frank Jenkins. If the person directed to be produced is described in any way so as to be identified as the person intended the writ shall not be disobeyed for any defect of form. Id., § 2024. While the act of counsel in making the changes above referred to was indiscreet and injudicious, it is manifest that it was not done with evil intent. A writ or an order of the court, when it has once been signed, should never be changed in the slightest degree by any person into whose hands it comes without the express authority of the court. Code Civ. Pro., § 727. But, if the changes, were material, the respondent must choose one hom of the dilemma or the other. Either it was within the implied authority of [34]*34counsel who had obtained the writ to change it so as to make it conform to the intent of the justice issuing the writ and to correct a palpable mistake therein, or such change was made entirely without authority and by a stranger to the instrument. If the former is the case, then the writ was not vitiated. 2 Cyc. 148; Clute v. Small, 17 Wend. 238; Hale v. Russ, 1 Maine, 334. But, if the change was made without authority and by a stranger, such change has no effect upon the original writ. The paper then has no other or different meaning than it had before such change was made. 2 Cyc. 154; Martin v. Tradesmen’s Ins. Co., 101 N. Y. 498. If a change is made by one of the parties to an instrument, still, if the legal import and effect of the instrument remain the same after the alteration, such alteration does not vitiate it, in the absence of a statute declaring such to be the effect. Prudden v. Hester, 103 Mich. 540; Krouskep v. Shontz, 51 Wis. 204; Clapp v. Collins, 7 N .Y. Supp. 93; Leonnard v. Phillips, 39 Mich. 192; Derby v. Thrall, 44 Vt. 413; Arnold v. Jones, 2 R. I. 345; Rudesill v. Jefferson Co., 85 Ill. 446.

In this case, from the petition and the mandatory portions of the writ, it is perfectly apparent that the person to be produced was Frank Jenkins. Any changes in the other portions of the writ, to conform to the principal parts thereof and effect that intention, were immaterial changes and did not make the writ void.

It was also claimed that the writ was defective for failure to incorporate in the petition the various matters and things specified in section 2019 of the Code of Civil Procedure. Without determining whether the expression of one alleged cause of detention is 'an exclusion of all others, it is sufficient to say that this objection was waived by appearing and filing a return to the writ instead of moving to quash the same. 21 Cyc. 314; McClennan v. Margowski, 90 Ind. 150.

Objection was also made that the writ was not properly served because no fees were tendered to the respondent nor any undertaking given, as provided by section 2000 of the Code of Civil Procedure. Without deciding whether the provisions of that section apply to the respondent and without deciding whether any such restrictions upon the power of the [35]

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Bluebook (online)
57 Misc. 30, 107 N.Y.S. 1020, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jenkins-v-kuhne-nysupct-1907.