People ex rel. Mooney v. Walsh

The writ of habeas corpus was not served upon the sheriff •as required by law. By section 1999 of the Code such a writ must be personally served “in like manner as a summons issued out of the supreme court.” By section 2003 it may be served by delivering “it to the person to whom it is directed.-” Section 2004 provides that a sheriff upon whom complete service of a writ of habeas corpus is made as prescribed in this article must obey and make return to the writ. In the present case these provisions were entirely ignored, and there was not even a service upon the clerk in the sheriff’s-office. If Mr. Suydam supposed that such service upon a clerk was sufficient, he should not have taken the writ back from the clerk, but should have left it where he originally delivered it. The law, however, as it wmuld seem from the above quotations, requires a personal service, and this was not even attempted. It is stated in the affidavit that the prisoner was in the sheriff’s custody, under the commitment of the court of general sessions, and this is undoubtedly a correct view of the legal situation. Under such circumstances the relator was bound to serve the writ upon the sheriff. Service at the jail, by leaving the writ with the warden, was only effective in case the sheriff could not, after due diligence, be found. Section 2003. The relator could not escape the requirements to serve the sheriff personally, or to prove that he could not be found with due diligence, by directing the writ to the warden. The fact is that the sheriff did his duty in executing the commitment of the sessions, and he would have been derelict in his duty had he failed to do so, because the relator’s attorney had obtained a writ which he did not choose to serve upon him. The sheriff would have been justified in using the power of the county to aid him in executing the commitment had the warden interfered with him in taking his prisoner. The latter was not in the warden’s custody, but in the sheriff’s. He was secured in a jail, of which the warden was keeper, but the sheriff was the only legal custodian under the commitment.

The motion must, therefore, be denied in all its parts.