Where an accused brought a habeas-corpus proceeding before a city court judge, attacking the validity of a fugitive warrant under which he was arrested, and where, pending such a proceeding, a new, different, and independent habeas-corpus proceeding was brought before a superior court judge for a different purpose by a different party, claiming the right of custody of the accused under the Governor's final rendition warrant, the original proceeding before the city court judge could not thereafter be amended, by adding an attack upon the final rendition warrant, so as to deprive the superior court judge of his jurisdiction already acquired.
No. 14655. NOVEMBER 10, 1943. REHEARING DENIED DECEMBER 10, 1943. On May 17, 1943, John P. Faughnan, as "accredited agent" of the State of New York, filed before the judge of the superior court, a petition for habeas corpus against J. C. Lewis as sheriff of Dodge County, and individually, and M. J. Holt as deputy sheriff, and individually, and A. R. Ross as judge of the city court of Eastman, and individually, to obtain from the respondents the custody of Louis G. Small, an alleged fugitive from a conviction for a felony in the State of New York, and now in the custody of the respondent officers. A writ of habeas corpus was issued on May 17, 1943.
Each of the respondents filed an answer to the petition. The judge of the city court filed a motion to quash. The accused, Louis G. Small, filed a special appearance, only questioning the jurisdiction of the superior court judge. The Governor of Georgia, though not a party of record, has also, through the Attorney-General, filed a brief in this court in support of the right of the State of New York to the custody of the accused, and in support of the right of the Governor of this State to issue, as he did, a final rendition warrant for the delivery of the accused to New York, and to waive the right of the State to try the accused on an *Page 22 accusation in the City Court of Eastman for practicing medicine in this State without a license. The controlling question is, whether the superior court was without jurisdiction of the habeas-corpus proceeding brought by the agent of New York to obtain custody of the alleged fugitive from the county officers, because, prior to this habeas corpus, the accused had filed a petition for habeas corpus before the judge of the City Court of Eastman, attacking the validity of a preliminary fugitive warrant issued by the Governor of Georgia before extradition proceedings and the issue of a final rendition warrant for the delivery of the accused to the State of New York.
The judge of the superior court, in dismissing the instant habeas corpus, held that the judge of the city court had concurrent jurisdiction with him of habeas-corpus cases; that every issue involved in the present case could be adjudicated under the petition first brought by the accused before the judge of the city court; that the present petitioner, as agent of the State of New York, could and should intervene or make himself a party to the city court case; and that, since the judge of the city court had first acquired jurisdiction, the judge of the superior court had no jurisdiction to proceed.
Stated chronologically, the pleaded records and undisputed evidence show the following facts: On July 15, 1942, the accused was convicted and sentenced to a term of 3 to 6 years under an indictment in the State of New York for abortions and conspiracy to commit abortion; and pending his appeal he was admitted to bail. On April 16, 1943, the Appellate Division of the Supreme Court of New York affirmed his conviction; and, as alleged by the agent of New York, the accused was required to surrender himself to the trial court in New York on April 19, 1943, at which time his bond was forfeited. Pending the New York appeal, the accused, with his wife, located in Dodge County, where he has been assisting the doctor in charge of a hospital.
On April 19, 1943, upon affidavit by an agent of the surety company that the accused was charged with abortion and conspiracy in New York, and was then in Dodge County and likely to escape, the Governor of Georgia issued a fugitive warrant, under the Code, § 44-304, in advance of extradition proceedings, for the arrest and holding of the accused for 20 days or until otherwise provided. *Page 23 The accused was arrested under this warrant and was taken into the custody of Lewis, the respondent sheriff, and Holt, the respondent deputy sheriff and jailer.
On April 20, 1943, Small, the accused, filed with the city court judge his petition for habeas corpus against the sheriff and deputy sheriff, in which he prayed to be discharged from alleged illegal custody by them under the fugitive warrant, first issued by the Governor. In this original petition he alleged that the affidavit before the Governor was false; that he was not a fugitive from justice from New York; that his rights of appeal there had not terminated, and that his arrest in this State was premature; and that in his New York trial his constitutional rights had been violated, in that he had been convicted without a fair trial by jury and without due process of law. On April 20, 1943, the city court judge issued the writ of habeas corpus, directing the sheriff and deputy to bring in the accused before him on May 8, 1943.
On April 23, 1943, the Governor of New York issued a requisition on the Governor of Georgia for the return of the accused to New York, and later these papers were presented to the Governor of Georgia.
On April 26, 1943, an accusation dated April 19, 1943, and based on an affidavit and a warrant dated April 19, 1943, was filed against Small, the alleged fugitive, in the City Court of Eastman. where the original petition for habeas corpus had been filed. This accusation charged him with a misdemeanor, committed on April 6, 1943, by practicing medicine in the county without a license in treating an injury of a named person for a fee. In the answer filed by the sheriff and deputy sheriff in the city court habeas-corpus proceeding, they state that, in addition to the fugitive warrant, the above warrant for the misdemeanor was also placed in their hands; and that they have been "since said date holding [the accused] in their custody and still so hold him, subject to the order of the judge of the City Court of Eastman, to which court said warrant was made returnable."
On May 6, 1943, after a hearing on the New York requisition papers with counsel for the accused present, the Governor honored the requisition, and issued a "rendition warrant" for the arrest and delivery of the accused to named New York agents.
On May 7, 1943, one of the named New York agents and a member *Page 24 of the Georgia patrol attempted to arrest the accused under this warrant; but the sheriff of Dodge County, who had previously had the accused in his custody, again took him into custody, and asserted a superior right of custody under the orders of the city court judge in the city court habeas corpus.
On May 8, 1943, the return day set for hearing the city court habeas corpus, the alleged fugitive filed a first amendment to his petition, in which he first elaborated the averments in his original petition attacking the preliminary fugitive warrant, as reasons why he was not a fugitive from New York, and why the trial in that State had violated his constitutional rights. He further pleaded that, although on April 26, 1943, the Governor of New York had made demand on the Governor of Georgia for his arrest and return to New York, yet previously, on April 19, a prosecution and warrant had begun against him in the City Court of Eastman for practicing medicine without a license; that under the Code of Georgia, § 44-303, this case must first be disposed of; and that by reason of such charge and other stated reasons, he was being held in custodia legis in Georgia, and was not and "cannot be a fugitive from the State of New York." This first amendment of the city court habeas-corpus petition did not attack or refer to the Governor's final rendition warrant, issued on May 6. On May 8, 1943, the respondent sheriff and his deputy made their returns, alleging that they were detaining the accused under both the original fugitive warrant and the city court misdemeanor warrant; and they asked the direction of the court as to the detention or further disposition of the accused. The officers holding the accused in custody in no wise set up any arrest or holding under the final rendition warrant. On the date last stated, the judge of the city court continued the hearing, and directed the sheriff to retain his custody under previous orders of that court until its further order.
On May 13, 1943, the Governor of Georgia issued an executive order which recited a history of the previous extradition proceedings; waived "the right of the State of Georgia to detain [the alleged fugitive] to answer the charge of . . practicing medicine in this State without a license;" directed the sheriff of Dodge County and all others holding the alleged fugitive in custody to forthwith deliver him to named, authorized agents of New York; and directed the Attorney-General and his assistants to prosecute *Page 25 or assist in any legal proceedings thought necessary by the Attorney-General or the assistants "to carry out the purposes of this order."
On May 17, 1943, after the refusal of the sheriff and his deputy to deliver the alleged fugitive to the designated agent of New York, on a demand for custody, the agent filed the instant petition for habeas corpus, before the superior court judge, against the sheriff, his deputy, and the city court judge. The superior court judge issued the writ, returnable May 19, and later continued the case until June 7.
On May 24, 1943, the alleged fugitive filed in the city court a second amendment of his habeas-corpus petition, and for the first time attacked the Governor's rendition warrant issued in the extradition proceedings. He alleged that he was then being held under three detentions: the warrant and accusation against him in the city court, which he did not attack in this or the previous amendment; the habeas-corpus order of the city court judge, which had not been finally determined; and the Governor's final rendition warrant. He prayed that the rendition warrant be dissolved and that he be "discharged until said Georgia prosecution be terminated;" that his conviction in New York be declared void; and that he be allowed sufficient time in which to assemble evidence in New York and elsewhere before determining the city court habeas corpus. In this second amendment, he elaborated his constitutional grounds of attack on the validity of his New York conviction; and alleged that on account of its invalidity he was not a fugitive from justice, and that he had been and was in custodia legis of the State of Georgia until the prosecution against him in the city court for a misdemeanor had been terminated. The accused and all of the respondent officers, now holding the accused in custody, also attack the legal right of the Governor of this State to waive any right of the State to try the alleged fugitive on the Georgia accusation before delivering him for extradition to the State of New York.
On June 7, 1943, the instant superior court proceeding, brought by the agent of New York against the officers holding the alleged fugitive in custody, for the purpose of obtaining custody under the Governor's final rendition warrant, was heard. In his petition the agent set forth the extradition proceedings, the priority of *Page 26 his right of custody under such warrant, and attacked the validity and effect of the city court habeas corpus as against such warrant. Copies of the pertinent papers were in evidence. There was some oral testimony as to the proceedings and a hearing that had been held before the city court judge.
On June 7, 1943, the judge of the superior court entered a judgment as stated, holding that he was without jurisdiction and dismissing the present habeas-corpus proceeding.
The petitioner, as agent of the State of New York, excepts on the grounds that, under the law and evidence, the city court judge did not have exclusive jurisdiction, and the superior court judge had jurisdiction; that the judgment was contrary to the law and the evidence; and that "the rendition warrant of the Governor of Georgia, together with his waiver of the misdemeanor prosecution . . entitled petitioner to the custody" of the accused. 1. In this State, the writ of habeas corpus will lie, not only by "any person restrained of his liberty" or by any person who is "interested" in such restraint even "from humanity alone" (Broomhead v. Chisolm, 47 Ga. 390 (6), 394), but also the writ will lie in behalf of "any person alleging that another . . is kept illegally from the custody of the applicant." Code, § 50-101. Our statute thus provides for two different kinds of habeas corpus: one by a person restrained or by some one in his behalf, such as was "known to the common law as the habeas corpus ad subjiciendum . . issued in cases of illegal detention," in which the only parties before the court were the person detained and the person detaining, and the only issue was the legality of such restraint, either under pretext of legal process or under no process or right of restraint. Simmons v. Ga. Iron Coal Co., 117 Ga. 305,309 (43 S.E. 780, 61 L.R.A. 739); Code, § 50-102 (3). The other kind of habeas corpus under § 50-101, brought by one claiming a right of custody against another holding custody, and seeking not to release but to claim custody of the person detained, covers not only cases involving the detention *Page 27 of a wife or child against the right of the applicant (Robertson v. Heath, 132 Ga. 310, 313, 64 S.E. 73; Code, § 50-121), but also, by its comprehensive language, what has been termed "habeas corpus ad prosequendum," which issues when necessary to remove a prisoner to another jurisdiction having the right to try him under a previous indictment or imprison him under a previous sentence. See Bouvier's Law Dictionary; Cyclopedic Law Dictionary; 12 R. C. L. 1180, § 2; 29 C. J. 6, § 1. Accordingly, the purposes, issues, parties, and essential nature of the two kinds of habeas corpus are entirely different.
2. Where an affidavit has been filed with the Governor, under the Code, § 44-304, setting forth the commission of an offense in another State by a person now within this State, and the Governor has issued a warrant for his arrest, such warrant shall authorize his detention for "as long as 20 days," and if, at the expiration of such time, no formal demand shall have been made by the Governor of the State where the offense is alleged to have been committed, the person thus detained shall be discharged from custody; except that, on an additional affidavit as to such "intended application" as prescribed by § 44-304, he may be kept for five additional days.
3. Where under the statute last cited and an affidavit as to the commission of an offense in a foreign State, the Governor of this State has issued a preliminary fugitive warrant, providing that it shall lapse in twenty days, and where, after the accused was arrested thereunder, he filed with the judge of a city court a petition for habeas corpus, in which he sought his discharge from custody under such fugitive warrant, and attacked the legality of the Governor's fugitive warrant by alleging the invalidity of his conviction of a felony in the foreign State, and consequently denying that he was a fugitive from that State, the primary question involved was whether the warrant under which the petitioner was being held came within the lawful authority of the Governor to issue (25 Am. Jur. 159, § 26, and cit.), and whether, under the disclosed facts as contained in the record, the questions raised by the habeas-corpus petition attacking such preliminary warrant had become moot.
(a) The fact that the petitioner within the twenty-day period amended his petition by setting up a pending accusation against him in the same city court, for a misdemeanor, and a warrant *Page 28 thereon under which he was arrested, but which he has never attacked, would not operate to give vitality to his attack on the preliminary fugitive warrant, if it should be held by the city court judge that such fugitive warrant had become inoperative by its terms, and that the proceeding based thereon had become moot. The accused himself appears to have recognized that such warrant had become functus officio, and that the questions raised in the attack thereon in his original city court petition had become moot, by filing a second amendment, as next dealt with, in which he apparently omitted any claim that he was being held by the sheriff under this preliminary fugitive warrant, but alleged that he was being detained by the sheriff under the warrant, accusation, and order of the city court and under the Governor's final "rendition warrant," which he then for the first time attacked.
(b) Nor would the fact that the alleged fugitive, by a second amendment to his habeas-corpus petition before the city court judge, sought to attack the Governor's final rendition warrant under an extradition proceeding, operate to give to the city court judge jurisdiction of that question, where it also appears that, prior to such second amendment, a new habeas-corpus proceeding of a different character and involving new and different parties, had already been instituted before a superior court judge by an agent of the foreign State, against the sheriff and his deputy and the judge of the city court, claiming custody of the alleged fugitive under the Governor's final rendition warrant. This is true for the reason that, since the final rendition warrant of the Governor was not attacked in the city court habeas-corpus proceeding until after the superior court judge had acquired jurisdiction on the question as to the validity of the final-rendition warrant, such an amendment in the city court would not operate to deprive the superior court judge of his jurisdiction thus acquired to determine that question. Whether, in the absence of such a proceeding before the superior court judge, the accused could have amended his proceeding before the city court judge by raising the new, separate, and independent question, involving different parties, is not before us for decision.
4. Under the preceding rulings, the judge of the superior court erred in holding that he was without jurisdiction of the instant habeas-corpus proceeding by the agent of the State of New York *Page 29 and in dismissing the case, on the ground that the city court judge had already acquired jurisdiction.
5. Where, in thus dismissing the case solely on the ground of want of jurisdiction, the judge did not pass on any question respecting the merits, this court will not determine such questions. See Haynes v. Thrift Credit Union, 192 Ga. 229 (3) (14 S.E.2d 871), and cit. These questions relate to the right of custody of the alleged fugitive as between the contending officials; the authority of the Governor of this State, under the Code, § 44-303, to waive any right of this State to try the accused under the city court accusation before permitting his extradition to New York; the validity and effect of the Governor's final rendition warrant, and questions in connection therewith as to the constitutionality of the conviction of the accused in New York, and whether he was a fugitive from that State; the right of the agent of New York to intervene in the city court habeas corpus, or the right of any party at interest to intervene in the instant superior court habeas-corpus proceeding.
Judgment reversed. All the Justices concur.