A petition against an ordinary to recover the statutory penalty for refusal to issue the writ of habeas corpus, the application for which contained the requisite matter, was in due form, duly authenticated, which was duly presented, and which showed on its face that the imprisonment was illegal, was not subject to demurrer, though the illegal order authorizing the detention was signed by a judge of the superior court. DECIDED FEBRUARY 20, 1943. REHEARING DENIED MARCH 19, 1943. George Rhodes sued Levy H. Glenn to recover a $2500 penalty for failure to grant a writ of habeas corpus on plaintiff's application. The petition alleged: "1. Your petitioner is illegally restrained of his liberty, by being confined in the common jail of said county. 2. The person restraining the liberty of your petitioner is Lonnie Pearce, the sheriff and jailer of said county. The cause or pretense of said restraint by the said defendant is under and by virtue of an order granted by his Honor O. T. Gower, Judge of the superior courts of the Cordele Judicial Circuit. Said order being as follows, to wit: `Georgia, Wilcox County. The grand jury of Wilcox County, Georgia, at the present term just being recessed until the further order of the court, having so recommended, it is considered, ordered, and adjudged that George Rhodes and Sam Rhodes each and both execute a bond to keep the peace as to the persons, families, and properties of C. W. Gillespie and G. W. Harrell, in the amount of five hundred dollars each. It is ordered that the sheriff of Wilcox County is hereby directed to take both of the above-named parties into his custody and to keep them in his custody until the above-described peace bonds have been executed by the said above-named parties, and said bonds have been approved by the clerk of this court. This order is drawn immediately upon the recommendation of the grand jury, and is expressly held open for such other further amendment or addition as may be deemed advisable by the court at a later date. . ' 3. Petitioner avers that said order or process hereinbefore recited is illegal and void for the following reasons, to wit: (a) Said judge had no jurisdiction to pass said order. (b) Because said order was ex parte and based solely on the recommendation of the grand jury. (c) Said order is void because the court had no jurisdiction of this defendant *Page 164 [plaintiff] at the time the same was passed. (d) Because said order is void in that it violates the constitutional provision of the State of Georgia, to wit, article 1, paragraph 1, section 3, as follows, to wit: `No person shall be deprived of life, liberty, or property except by due process of law.' (e) Because said order violates the constitution of the United States, amendment 14. It reads as follows, to wit: `No State shall deprive any person of life, liberty, or property without due process of law.' In that said order was passed by the court ex parte and without any notice to petitioner, and without any hearing, and without an opportunity to make any defense, and without any warrant having issued, and without any arrest of petitioner. (f) Petitioner avers that said order by said judge was void ab initio, and, being void, gives to said defendant no right to restrain petitioner of his liberty. Wherefore petitioner avers that his further restraint is illegal, and prays your honor to issue said writ of habeas corpus direct to Lonnie Pearce, sheriff as aforesaid, requiring him to bring your petitioner before your honor at the time and place to be specified in the writ, for the purpose of examination into the cause of the detention. . . Personally comes George Rhodes, who being duly sworn deposes and says that the allegations contained in the foregoing petition for the writ of habeas corpus are true. . . "
The defendant demurred to the petition, as follows: "1. Said petition sets forth no cause of action. 2. The penalty exacted under the statute on which plaintiff's cause is based does not apply as against this defendant, an ordinary. 3. The statute on which plaintiff's cause is based is void as against the policy of this State, in that it provides for the collection of a penalty and amounts to a confiscation and forfeiture of estate of the party sued. 4. Plaintiff's petition and exhibits which are made a part thereof show that the act of the ordinary, the defendant, in declining to grant the writ of habeas corpus, was made after he read and duly considered said petition and exhibits, and his said order of refusal was judicial in its terms and effect, for which he is not civilly liable." The court sustained the demurrer and dismissed the action, and plaintiff excepted. It will be noted that in the petition for habeas corpus the requirements of *Page 165 the Code, § 50-102, were strictly complied with. It was held inJones v. Hill, 17 Ga. App. 151 (87 S.E. 755), that one who is empowered to issue the writ is under duty to do so if the petition contains the requisite matter, is in due form, duly authenticated, duly presented, and does not show on its face that the imprisonment is in fact legal; and it was further held (see concurring opinion of the majority of the court at page 159) that a judge who refuses to grant a writ of habeas corpus does so at his peril, which means that if a judge is mistaken in his prophesy that the court of last resort will agree with him that the petition is so defective as to warrant a refusal of the writ, he will be subject to the penalty provided in Code, § 50-105. The petition in this case showed an illegal detention, and upon proof of the facts alleged the petitioner was entitled to his liberty.Rhodes v. Pearce, 189 Ga. 623 (7 S.E.2d 251). The ordinary erred in refusing to grant the writ, and under the decision cited is subject to the penalty. The defendant contends that he was placed in the position of subjecting himself to a statutory penalty if he refused to grant the writ and punishment for contempt of court if he granted it. We can not agree to this contention. The grant of the writ could in no event subject the officer granting it to punishment for contempt. The same would seem to apply with greater force to a judicial action upon a trial of the issues. The ordinary in this case seems to have been under the impression that he was powerless to overrule an order of the judge of a court of superior jurisdiction. We are in complete sympathy with the spirit of the ordinary's decision, and reason therefor he was mistaken; and however harsh the penalty may seem, this court is powerless to grant him any relief. InSimmons v. Georgia Iron Coal Co., 117 Ga. 305 (7), 317 (43 S.E. 780, 61 L.R.A. 739), it was held: "The fact that the application may show that the person held in custody is detained under a void sentence of the superior court would not prevent the judge of a city court, having power to grant the writ, from taking jurisdiction of the proceeding." The court stated: "We are not aware of any difference in rank among the various judges of the State, when acting as habeas corpus judges." Under the authorities cited, the court erred in sustaining the demurrer and in dismissing the action.
Judgment reversed. Stephens, P. J., and Sutton, J., concur. *Page 166