VandeRBURGH, J.
A writ of habeas corpus was issued by the court commissioner of Otter Tail county to the sheriff of that county, commanding that officer to bring before him one Maria J. Blais-dell, represented to be in his custody, in order that due inquiry might be made into the cause and legality of her detention. The ■sheriff' made due return that he held her in custody by virtue of a warrant of the Judge of Probate of the county, ordering her to be ■committed to the State Hospital for the Insane at St. Peter, and produced the original warrant.
The statute (3878 G-. S. ch. 80, § 43) provides that the party brought before such officer may traverse the material facts in the return, or may allege any new matter to show that ,his imprisonment or detention is unauthorized, and thereupon such officer is to proceed in a summary way to hear such proof as might be presented in support or in opposition to such detention.
In this case, ho-wever, there was no pleading on the part of the petitioner to the return of the officer, and there were therefore no issues of fact for the court to try and determine upon evidence, and [470]*470the commissioner had no authority to receive or act upon evidence in the case outside of the return. Nor had he any authority, upon habeas corpus, to review the findings of the Probate Court, further than to inquire into questions of jurisdiction, nor to enter upon a re-examination of the question of insanity, upon evidence produced before him. Such officer can exercise no appellate jurisdiction, nor consider any errors or irregularities in the proceedings, judgment, or process of any competent court having jurisdiction. He can only inquire whether the judgment or process complained of is invalid because without or in excess of jurisdiction. State ex rel. v. Sheriff of Hennepin Co., 24 Minn. 91. In this connection, it is proper to state that the provision in 1878 G. S. ch. 80, § 25, which denies the writ of habeas corpus to any person detained by virtue of the process or judgment of any competent tribunal clearly has no application to judgments or process void for jurisdictional defects. This provision, which is found in the statutes of other states, has a well-defined construction and meaning; and the accepted doctrine is enunciated in People v. Liscomb, 60 N. Y. 591: “A party held only by virtue of a judgment void for want of jurisdiction, or by reason of the excess of jurisdiction, is not put to his writ of error, but may be released upon habeas corpus.
It will not answer to say that a court having power to give a particular judgment can give any judgment, and that a judgment not authorized by law, or contrary to law, must be corrected by error. This would be trifling with the law, the liberty of the citizen, and the protection thrown about his person by the bill of rights and the constitution, and creating a judicial despotism. It would be to defeat justice, and nullify the writ of habeas corpus by the merest technicality, and the most artificial process of reasoning.”
Upon the record before us, for reasons already stated, the only question open to the commissioner arose upon the return, and relates to the validity and sufficiency of the warrant under which the party was held. Before calling special attention to the form or terms of the warrant, however, it will be proper to refer briefly to the provisions of the statute in reference to the examination and commitment of insane persons. These provisions are found in the Probate Code, ch. 14. They are brief and summary in their character, [471]*471though an improvement in some respects upon the provisions of the General Statutes superseded by the Code. See Knox v. Hang, 48 Minn. 60, (50 N. W. 934.) It is therefore all the more important, in order to secure proper safeguards for the rights and liberty of persons alleged to be insane, that the directions of the statute be carefully followed.
Upon information filed, provision is made for bringing the party before the Probate Court, and thereupon the court is required to make an order directed to two reputable persons, one of whom is to be a duly-qualified physician; and such persons, in connection with the Probate Judge, shall constitute a jury “to examine the person alleged to be insane, and they shall ascertain the fact of sanity or insanity.”
The persons designated in the order are required to take the prescribed oath before proceeding to the examination. Provision is also made for the examination of witnesses on both sides; and when the examination is ended “the jury shall forthwith make report of their findings in writing, which shall be filed in the Probate Court; their finding shall be that the person is ‘sane’ or ‘insane.’ ” And if the person so examined is found to be insane the Probate Court shall order him to be committed, etc., and in such order shall direct that warrants be issued to the sheriff or other suitable person, who shall be authorized to convey such person to the hospital designated. It will be seen that the examination is to be conducted in the presence of the party, and to be by and in the presence of the jury, and that the party, or those representing him, must be allowed to take part in it, and to offer proper testimony in opposition to the information. And the examiners and judge must act as a committee or “jury” throughout, until the examination is completed, and finding made and filed.
It is obvious that the special finding in writing must be the act of “the jury,” based upon the examination and inquiry by and in the presence of the jury, and not the act of the Judge, based in whole or in part on the report or recommendation of the examiners.
The statute requires that a speeded series of questions shall be propounded and answered in the course of the examination of a person alleged to be insane, a copy of which is to be sent to the superintendent of the hospital for his information. But this is by [472]*472no means to constitute the sum of the examination, though part of the duties of the examiners in connection with it. The examination and finding are under the sanction of an oath. The jury must be satisfied upon such examination, including that of the patient and of the witnesses sworn in the case, of his insanity, before such finding can be reached, and in the conduct of the examination by the members of the jury, and to aid them in their deliberation and decision they are entitled to the professional skill and experience of the medical expert on the jury, as applied to the symptoms and evidence disclosed by the examination.
In this case the warrant under which the sheriff justifies is as follows:
“State of Minnesota, County of Otter Tail, ss.: Office of the Judge of Probate of said county. To the Superintendent of the St. Peter State Hospital: On the receipt of the certificate of two duly-qualified examiners in lunacy, appointed by me, certifying to the insanity of Maria J. Blaisdell, of Pelican Rapids, Minnesota, and recommending her commitment to a hospital for the insane, and having caused her to be fully informed of the proceedings taken in her case, and having (here state whether he personally saw alleged insane person, or took any further testimony) personally seen Mrs. Blaisdell, and taken further testimony in the case, it appears to me, upon full consideration of the certificate of the examiners, and other evidence, that Maria J.
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VandeRBURGH, J.
A writ of habeas corpus was issued by the court commissioner of Otter Tail county to the sheriff of that county, commanding that officer to bring before him one Maria J. Blais-dell, represented to be in his custody, in order that due inquiry might be made into the cause and legality of her detention. The ■sheriff' made due return that he held her in custody by virtue of a warrant of the Judge of Probate of the county, ordering her to be ■committed to the State Hospital for the Insane at St. Peter, and produced the original warrant.
The statute (3878 G-. S. ch. 80, § 43) provides that the party brought before such officer may traverse the material facts in the return, or may allege any new matter to show that ,his imprisonment or detention is unauthorized, and thereupon such officer is to proceed in a summary way to hear such proof as might be presented in support or in opposition to such detention.
In this case, ho-wever, there was no pleading on the part of the petitioner to the return of the officer, and there were therefore no issues of fact for the court to try and determine upon evidence, and [470]*470the commissioner had no authority to receive or act upon evidence in the case outside of the return. Nor had he any authority, upon habeas corpus, to review the findings of the Probate Court, further than to inquire into questions of jurisdiction, nor to enter upon a re-examination of the question of insanity, upon evidence produced before him. Such officer can exercise no appellate jurisdiction, nor consider any errors or irregularities in the proceedings, judgment, or process of any competent court having jurisdiction. He can only inquire whether the judgment or process complained of is invalid because without or in excess of jurisdiction. State ex rel. v. Sheriff of Hennepin Co., 24 Minn. 91. In this connection, it is proper to state that the provision in 1878 G. S. ch. 80, § 25, which denies the writ of habeas corpus to any person detained by virtue of the process or judgment of any competent tribunal clearly has no application to judgments or process void for jurisdictional defects. This provision, which is found in the statutes of other states, has a well-defined construction and meaning; and the accepted doctrine is enunciated in People v. Liscomb, 60 N. Y. 591: “A party held only by virtue of a judgment void for want of jurisdiction, or by reason of the excess of jurisdiction, is not put to his writ of error, but may be released upon habeas corpus.
It will not answer to say that a court having power to give a particular judgment can give any judgment, and that a judgment not authorized by law, or contrary to law, must be corrected by error. This would be trifling with the law, the liberty of the citizen, and the protection thrown about his person by the bill of rights and the constitution, and creating a judicial despotism. It would be to defeat justice, and nullify the writ of habeas corpus by the merest technicality, and the most artificial process of reasoning.”
Upon the record before us, for reasons already stated, the only question open to the commissioner arose upon the return, and relates to the validity and sufficiency of the warrant under which the party was held. Before calling special attention to the form or terms of the warrant, however, it will be proper to refer briefly to the provisions of the statute in reference to the examination and commitment of insane persons. These provisions are found in the Probate Code, ch. 14. They are brief and summary in their character, [471]*471though an improvement in some respects upon the provisions of the General Statutes superseded by the Code. See Knox v. Hang, 48 Minn. 60, (50 N. W. 934.) It is therefore all the more important, in order to secure proper safeguards for the rights and liberty of persons alleged to be insane, that the directions of the statute be carefully followed.
Upon information filed, provision is made for bringing the party before the Probate Court, and thereupon the court is required to make an order directed to two reputable persons, one of whom is to be a duly-qualified physician; and such persons, in connection with the Probate Judge, shall constitute a jury “to examine the person alleged to be insane, and they shall ascertain the fact of sanity or insanity.”
The persons designated in the order are required to take the prescribed oath before proceeding to the examination. Provision is also made for the examination of witnesses on both sides; and when the examination is ended “the jury shall forthwith make report of their findings in writing, which shall be filed in the Probate Court; their finding shall be that the person is ‘sane’ or ‘insane.’ ” And if the person so examined is found to be insane the Probate Court shall order him to be committed, etc., and in such order shall direct that warrants be issued to the sheriff or other suitable person, who shall be authorized to convey such person to the hospital designated. It will be seen that the examination is to be conducted in the presence of the party, and to be by and in the presence of the jury, and that the party, or those representing him, must be allowed to take part in it, and to offer proper testimony in opposition to the information. And the examiners and judge must act as a committee or “jury” throughout, until the examination is completed, and finding made and filed.
It is obvious that the special finding in writing must be the act of “the jury,” based upon the examination and inquiry by and in the presence of the jury, and not the act of the Judge, based in whole or in part on the report or recommendation of the examiners.
The statute requires that a speeded series of questions shall be propounded and answered in the course of the examination of a person alleged to be insane, a copy of which is to be sent to the superintendent of the hospital for his information. But this is by [472]*472no means to constitute the sum of the examination, though part of the duties of the examiners in connection with it. The examination and finding are under the sanction of an oath. The jury must be satisfied upon such examination, including that of the patient and of the witnesses sworn in the case, of his insanity, before such finding can be reached, and in the conduct of the examination by the members of the jury, and to aid them in their deliberation and decision they are entitled to the professional skill and experience of the medical expert on the jury, as applied to the symptoms and evidence disclosed by the examination.
In this case the warrant under which the sheriff justifies is as follows:
“State of Minnesota, County of Otter Tail, ss.: Office of the Judge of Probate of said county. To the Superintendent of the St. Peter State Hospital: On the receipt of the certificate of two duly-qualified examiners in lunacy, appointed by me, certifying to the insanity of Maria J. Blaisdell, of Pelican Rapids, Minnesota, and recommending her commitment to a hospital for the insane, and having caused her to be fully informed of the proceedings taken in her case, and having (here state whether he personally saw alleged insane person, or took any further testimony) personally seen Mrs. Blaisdell, and taken further testimony in the case, it appears to me, upon full consideration of the certificate of the examiners, and other evidence, that Maria J. Blaisdell is insane, and a proper subject for custody and treatment in a hospital for the insane; and I so find, and hereby approve said examiners’ certificate. Therefore, it is ordered that Maria J. Blaisdell be committed to the St. Peter State Hospital, there to be detained until discharged according to law. Davis Burbank, Judge of Probate.”
In the absence of any other material or competent evidence, the decision 'Of this case must turn exclusively upon the validity of this warrant. It will be observed that it is not a simple warrant of commitment, in the statutory form, but it also includes recitals of the order of the Judge, and the nature of the procedure and evidence on which it is based. These recitals are at least prima facie evidence of the facts, and show a clear departure from the requirements of the statute. It appears that the Judge determined the question upon the certificate of the examiners and other evidence, and there[473]*473upon found the party insane. It needs no argument to show that this was not the finding of the jury required by the statute.
(Opinion published 57 N. W. Rep. 206.)
The warrant, therefore, on its face, appears to be wholly void and without jurisdiction, and the decision and order of the commissioner, though based by him on wrong reasons, were nevertheless correct, and must be affirmed.