In Re Jennings , 46 Idaho 142 ( 1928 )

I concur in holding that an appeal lies to this court from an order of the district court denying a writ of habeas corpus. I dissent from the remainder of the opinion.

The precise question is whether the commitment under which petitioner is held is valid. If it is invalid, his custody is unlawful and he should be discharged.

It is my opinion that the probate judge exhausted his jurisdiction on April 21, 1927, when the judgment was made and entered and petitioner was committed to the sheriff for imprisonment until the judgment was satisfied, and that he was, therefore, without jurisdiction, on January 16, 1928, to again commit petitioner to the custody of the sheriff. Such is the rule in this state. (In re Peterson, 19 Idaho 433, 113 P. 729, 33 L.R.A., N.S., 1067. See, also, the well-considered opinion of the supreme court of Oklahoma in Ex parteClendenning, 22 Okl. 108, 132 Am. St. 628, 97 P. 650, 19 L.R.A., N.S., 1041, and the authorities there cited.) In the Ensign case, 38 Idaho 539, 223 P. 230, a district judge had made an order annulling a jail sentence and remitting a fine. On certiorari to review the order, this court said:

"In the present instance the action to which the order purports to relate was no longer pending and the court had no jurisdiction to take any further action."

I am unable to understand how this holding supports the majority opinion. The validity of the order was the only question for decision in the Ensign case; and the statement that the judgment theretofore entered should be enforced ". . . . even though the period of the sentence may have expired" had no bearing whatever on the validity of the order and is clearly dicta.