In Re: A.W. Prautch (G.R. No. 581; February 14, 1902)

In the matter of the application of A.W. PRAUTCH for a writ of habeas corpus. (G.R. No. 581; February 14, 1902; 001 Phil 132); COOPER, J.:

The petitioner, Arthur W. Prautch, makes application to this court for a writ of habeas corpus and a writ of certiorari, alleging in his petition that he is unlawfully held by the Sheriff of Manila by an order made by the Court of First Instance in a civil suit pending in that court, under article 412, Code of Civil Procedure (1901), which provides for the arrest of defendant in certain civil cases.

It is alleged in the application that the suit in the Court of First Instance is based upon a cause of action which arose between the plaintiff and defendant on the 20th day of August, 1900, and it is contended that the court did not have jurisdiction to make the order of arrest, because at the date of the making of the contract there was no law then in existence authorizing an arrest in civil cases, such provision having been enacted by the Code of Civil Procedure, which went into effect the 1st day of October, 1901.

It is insisted that to sustain the proceedings would be giving the law a retroactive effect and that it would impair the obligation of the contract, and that a new remedy has been provided which changes the legal character and effect of the contract by taking away a vested right acquired under an existing law, creating a new obligation, imposing a new duty, and attaching a new disability in respect to the transaction or consideration already passed.

We think that the principle invoked is inapplicable to this character of remedy. The right to imprison for debt is not a part of the contract. (Sturges v. Crowninshield, 4 Wheat., 200; Odgen v. Saunders, 12 Wheat.; 230; U. S. v. Quincy, 71 U. S., 409; Sutherland on Statutory Construction, 625.)

If the right to imprison for debt is not a part of the contract the converse of the proposition is also true, that the right to exemption from imprisonment for a debt does not form a part of the contract. Such statutes are regarded as penal rather than remedial. They are enacted to prevent fraud in the making of contracts, or to prevent the subsequent fraudulent conduct of parties with reference to their obligation, and are properly invoked as a punishment for dishonesty.

It does not appear from the application whether the affidavit upon which the arrest was based set forth the fraudulent acts as having been committed at a time before or after the Code of Civil Procedure went into effect, and consequently it is not necessary to consider whether the statute as to prior acts would in its nature be an ex post facto law, and as to what would be the effect of a statute in such case.

There are other considerations equally conclusive against the right of petitioner to the writ. By provisions of section 528 of the Code of Civil Procedure (1901), if it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or magistrate or by virtue of a judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed.
The Court of First Instance had jurisdiction both of the subject-matter and of the person; the remedy for arrest is provided by statute and the question as to the sufficiency of the grounds is for the determination of the court.

That the affidavit for the arrest is based upon insufficient grounds or that the claim upon which the suit is based is without foundation in law are questions to be determined by the Court of First Instance, and should error be committed the defendant may appeal from the decision of the court.

It is true that an appeal can not be taken to an interlocutory order, but upon the rendition of a final judgment disposing of the action either party has the right to perfect the bill of exceptions for a review by the Supreme Court of all rulings, order, or judgment. (Sec. 143, Code of Civil Procedure, 1901.)

That the defendant may suffer unjust imprisonment while waiting for a final judgment is a question to be addressed to the legislative power.

To prevent such result all reasonable safeguards have been placed around the remedy. The order of arrest is made by the judge; an affidavit is required to be made by the plaintiff, or some other person who knows the facts, that a sufficient cause of action exists, and that the cause is one of those mentioned in section 412.

Before making the order the party applying for it must execute to the defendant an obligation in an amount to be fixed by the judge, and with sufficient surety to be approved by him, conditioned that the plaintiff will pay all costs which may be adjudged to the defendant, and all damages which he may sustain by reason of the arrest if the same shall finally be adjudged to have been wrongful or without sufficient cause. And, finally, the defendant arrested may at any time before the trial of the action apply to the judge who made the order, or to the court in which the action is pending, upon reasonable notice, to vacate the order of arrest or to reduce the amount of bail.

Upon such application the judge or court shall grant an immediate hearing, after notice to the parties, and upon hearing make such orders as appear to be just as to continuing the order of arrest or vacating same or reducing the amount of bail required. (Secs. 413, 414, 415, 423, Code of Civil Procedure, 1901.)

Without considering the question of the practice of joining in the same petition an application for both habeas corpus and certiorari, it is clear that a writ of certiorari can not be granted in such a case as is presented here.

Under the provisions of the Code in certiorari proceedings, it is necessary that it should appear both that the inferior court has exceeded its jurisdiction and that there is no appeal from such court. (Code of Civil Procedure, 1901, sec. 217.)

The application for writ of habeas corpus and certiorari is denied, and costs taxed against petitioner.