Relator was convicted of a misdemeanor and his punishment assessed at a fine of one dollar. The costs amounted to $13.75. On the 9th of July, 1937, relator paid $10.00 on the fine and costs, but declined to pay $4.75 which had been taxed as fees of the constable. On the 10th day of July, 1937, the justice of the peace issued a capias pro fine, by virtue of which the relator was arrested and lodged in jail. Thereafter he made application for a writ of habeas corpus on the allegation that he was illegally restrained of his liberty. The writ having been awarded, a hearing was had and he was remanded to custody. Hence this appeal.
Relator seeks in this proceeding to have the court declare that the constable was not entitled to fees in the amount of $4.75 for the reason that he failed to render the services entitling him to such amount. The items embraced in the constable's bill are in amounts authorized by the statute. If the relator thought that such items had been erroneously taxed as costs he had his legal remedy. Art. 1016, C. C. P., reads as follows:
"Whenever costs have been erroneously taxed against a defendant, he may have the error corrected, and the costs properly taxed, upon filing a written motion for that purpose in the court in which the case is then or was last pending. Such motion may be made at any time within one year after the final disposition of the case in which the costs were taxed, and not afterward. Notice of such motion shall be given to each party to be affected thereby, as in the case of a similar motion in a civil action."
The record fails to show that the motion contemplated by the statute was filed by the relator with the justice of the peace. Under the circumstances, it is our conclusion that he is not entitled to seek relief by way of habeas corpus. See Terrell v. State, 152 So. 612.
The judgment remanding relator is affirmed.
Affirmed. *Page 511
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.