People ex rel. Townsend v. Halloway

By the Court, Currey, J. The relator, Emery Townsend, as a Justice of the Peace of Lake County, and a magistrate having power to issue a warrant for the arrest of any person charged with a public offense, and also having authority to issue a search warrant directed to a peace officer, commanding, him to search for personal property stolen or embezzled, and bring it before him (Laws 1861, p. 223, Secs. 102, 103, and p. 284, Secs. 642-645), did, in the month of January, 1864, upon proper complaint made before him, issue a search warrant in due form, having for its object the discovery of an article of personal property alleged to have been stolen. The warrant was duly executed and the property discovered and delivered to the magistrate. The grounds upon which the warrant was issued were controverted by one John J. Dean, from whose custody the property was taken, and thereupon the magistrate proceeded to take and reduce to writing the testimony of divers witnesses in relation to the subject of controversy; and such proceedings were had in the case that the magistrate ordered the property to be restored and delivered to the complainant upon the payment of the necessary expenses. Three days afterward the magistrate annexed together the depositions of the witnesses, duly certified by him, and the search warrant with the affidavit on which it was issued, and the return of the officer thereon, and the inventory taken of the property, and caused the same to be. filed in the office of the Clerk of the County Court of said county, that they might be laid before that Court at its then next term.

Immediately after the decision of the magistrate was made for restoring and delivering the property to the complainant, [653]Dean by his counsel filed with the magistate a notice of appeal from this decision to the County Court, and tendered a bond on such appeal, which the magistrate refused to allow or approve, and he also refused to make any return on such appeal to the County Court. On the 7th of March following, Dean applied to the County Court for an alternative writ of mandamus, which was allowed and issued, commanding the magistrate, on a day named, to file with the Clerk of the County Court of said county “ all the papers necessary on the appeal of said cause,” together with the property in controversy, or to show cause to the contrary before the County Judge on the day appointed. This writ of mandamus was issued in aid of the supposed jurisdiction of the County Court in the premises. The magistrate, in obedience to this writ, made a return to the appeal alleged to have been taken, and filed an answer to the writ of-mandamus, and also deposited with the Clerk of the Court the property taken on the search warrant. On the day following, the County Court, on the motion of counsel for Dean, rendered a judgment dismissing the proceedings which it was assumed were before the Court on the appeal, and for the return of the property in controversy to Dean, and also rendered a judgment in favor of Dean against the magistrate, Emery Townsend, in the mandamus proceeding, for ten dollars damages, and ten dollars and five cents costs; and afterwards, in the month of April, an execution was issued on this judgment for damages and costs, and placed in the hands of the Sheriff.