Tena mendiminst the said plaintif, Hoke; that manas luce ir al sud costs, and this suit ne maar so that the appellee, said justice, perrar sui costs to and against the plainer eres ʼn said cause, and to issue the whenun derect

Gezei me mas muriinus will lie against a 19 A DEMRs u samgei such justice to enter judgment, m: kass es in accordance with the facts,

1. 1128 21re parely ministerial, but their 206 je led by minianus. Mandamus receres some other adequate remedy.

asen Stuá▼ Kum, 8 Coca 105, it is held that - vill lư an the instance of a party aggrieved, to S19 7 TAKE a me record of a judgment renin, and a fish a copy to such party when Pri ari than the superior court has jurisdiction to

I

H H

better sura wear recpy is correct. In Anderne. N CI 95, a is held that a mindamus will lie

ste of the peace to enter a judgment of dis

a nose. And in Fergie ex rel. v. Barnes, 66 Cal. kana mi that movienas will he to compel a justice to priced with the preliminary examination of a person Seglar & tharped with having committed a public offense: Formica ma Jung. 3 N. J. L. 577; Harrison v. Emmerson, 2 Lagh The Sila to ve v. Elmuris, 51 N. J. L. 479; State MATT: IA W 19; Logansport etc. R. R. Co. v. Gro4pm 11 Id 883. Share en rel v. Grabó, 85 Ind. 213; Moore 72 Ind 358.

In the case at ban the justice entered a judgment of dismissal of the cause. Upon such a judgment being entered, the relation, the defendant in such suit, was prima facie entitled to recover his costs from the plaintiff, and it was the duty of the justice to enter up a judgment in favor of the defendant against the plaintiff for his costs. The law fixed the liabilities and rights of the parties as to costs.

In the case of Pittsburgh etc. R'y Co. v. Town of Elwood, 79 Ind. 346, the court says: "Under our system of jurisprudence. the taxation of costs has always been a ministerial and not a judicial act, and officers entitled to charge costs have been authorized to tax such costs, from time to time, as the services for which they may be taxed shall be rendered."

The mere taxation of costs is a ministerial act. A case

may arise as to the amount of costs to be taxed, or concerning the taxing of costs, the determination of which would invoke the judicial powers of the justice of the court in which such question is presented; but no such question arises in this case: State ex rel. v. Jackson, 68 Ind. 58.

Section 590, Revised Statutes of 1881, provides that “in all civil actions, the party recovering judgment shall recover costs, except in those cases in which a different provision is made by law." In the case at bar, when the judgment of dismissal was entered, the defendant in the case was entitled to recover his costs, unless there be an affirmative showing of same facts by the plaintiff which entitled him to have some portion of the costs taxed against the defendant therein. No such state of facts is shown by the record.

Section 1506 makes it the duty of justices to issue execution on all judgments.

The relator has no other adequate remedy; until a judgment was rendered he could not appeal from it. He is not complaining of the judgment of dismissal. The injury he sustains is on account of the failure of the justice to enter the proper judgment in his favor for costs. It was the duty of the justice, on entering the judgment of dismissal, to enter a judgment in favor of the relator, the defendant, in such action for his costs, against the plaintiff therein, and to issue an execution on the same at the proper time. Having failed to discharge such duty, the relator is entitled, under the facts alleged in his complaint, to an alternative writ of mandate requiring appellee, the justice, to render up such judgment and issue an execution thereon, or to show cause why he should not do so.

The relator is entitled to a judgment against the plaintiff in said cause for his costs, and to have an execution issued for the collection of them. The costs made by the plaintiff in said cause the relator is not liable for, and has no interest in them; such costs are collectible by fee-bill against the plaintiff.

The court erred in sustaining the demurrer to the complaint.

Judgment reversed, with instructions to overrule the de

murrer.

MANDAMUS-WHEN IT MAY ISSUE TO CONTROL THE ACTS OF AN INFERIOR COURT. —The circuit court has power by mandamus to control the actions of inferior tribunals: St. Louis C. Court v. Sparks, 10 Mo. 117; 45 AM. ST. REP., VOL. XXIL-42

Am. Dec. 355, and note. A justice of the peace may be compelled by man damus to make entries in his docket in accordance with the facts: State v. Van Ells, 69 Wis. 19. A writ of mandamus will issue to compel a lower court to act: Commonwealth v. McLaughlin, 120 Pa. St. 518; Dorr v. Hill, 62 N. H. 506. The writ will issue to compel a lower court to perform a mani. fest duty, if it be not judicial or discretionary: People v. District Court, 14 Col. 396.

MCLAUGHLIN v. ETCHISON.

[127 INDIANA, 474.]

JUDGMENT OF CONVICTION ERRONEOUS BECAUSE AFFIDAVIT upon which the prosecution was based did not charge a public offense is not void, where the justice entering the judgment had jurisdiction of the subject-matter and of the person of the defendant.

HABEAS CORPUS. —THAT A Judgment of CONVICTION IS ERRONEOUS because the affidavit on which it was founded does not state a public offense does not entitle the defendant to be discharged upon habeas corpus. HABEAS CORPUS. — Though it is the duty of a justice, on the conviction of

the defendant, if he does not immediately pay the fine imposed, to commit him to jail, still the failure to commit him at once does not deprive the justice of the power to commit him at a subsequent time.

S. A. Forkner, for the appellant.

MCBRIDE, J. This was a petition for a writ of habeas corpus by the appellant, who alleged that he was unlawfully restrained of his liberty by the appellee, the sheriff of Madison County. A writ was awarded, but, on motion of the appellee, was quashed. This action of the court is assigned as error. From the petition the following facts are gathered: On the nineteenth day of February, 1891, an affidavit was filed with Benjamin McCarty, a justice of the peace of Madison County, which was evidently drawn under section 2066, Revised Statutes of 1881, charging, or attempting to charge, appellant and another with the erection and maintenance of a public nuisance. On this affidavit a warrant was issued, appellant was arrested and brought before said justice, when he was, on the twentieth day of February, 1891, tried, and adjudged guilty, and a fine of ten dollars and costs assessed against him, with an order that he stand committed until the fine should be paid or replevied. He was allowed to go until the fourth day of March, 1891, when, the fine not being paid or replevied, a mittimus was issued by the justice, and he was committed to the common jail of Madison County.

His conviction was clearly erroneous. which the prosecution was based did not

The affidavit upon charge a public of

fense. It is not necessary to point out its defects further than to say that it, at most, charges an interference with the free use by Fraly of his property by the erection of what is styled a "high and useless fence." The facts, properly pleaded in a civil suit, might entitle the party to damages, and to the abatement of the nuisance.

Notwithstanding the judgment of conviction was erroneous, it was not void. The justice had jurisdiction of the subjectmatter; that is, he had jurisdiction to hear and determine a charge, under section 2066, Revised Statutes of 1881, of the erection or maintenance of a public nuisance. He also had jurisdiction of the person of the appellant, and the judgment rendered by him cannot be attacked collaterally.

The writ of habeas corpus cannot be used for the mere correction of errors. To be entitled to the writ in a case like this, the party complaining must show a void judgment. A judgment that is merely erroneous, no matter how gross the error, will not suffice: Willis v. Bayles, 105 Ind. 363; Cooley's Constitutional Limitations, marg. p. 348; Lowery v. Howard, 103 Ind. 440; Holderman v. Thompson, 105 Ind. 112; Commonwealth ex rel. v. Leckey, 1 Watts, 66; 26 Am. Dec. 37, and note; 9 Am. & Eng. Ency. of Law, 227, and cases cited; Ex parte Watkins, 3 Pet. 193.

Section 1119, Revised Statutes of 1881, provides as follows: "No court or judge shall inquire into the legality of any judgment or process whereby the party is in his custody, or discharge him when the term of commitment has not expired, in either of the cases following: . . . . 2. Upon any process issued on any final judgment of a court of competent jurisdiction." The case at bar comes clearly within the provisions of this statute.

Appellant insists, however, that the mittimus is void because not issued until the fourth day of March, twelve days after the rendition of the judgment; that because he was not at once committed to jail in default of payment, the justice lost jurisdiction, and could not thereafter issue a valid mittimus.

It is the duty of a justice of the peace, if a defendant in a criminal cause does not immediately pay or replevy a fine adjudged against him, to commit him to jail. While this should be done at once, we know of no reason why, if for any reason it is not done, the justice may not issue a mittimus thereafter. We think he may. Nor do we think a defendant is in a situation to complain, either of the negligence of the

justice or of the indulgence extended to him by giving him time, without bail, for the payment of money which is immediately due.

Appellant complains that the justice, by allowing him to go, misled him, and induced him to believe no effort would be made to enforce the judgment, and that for this reason he did not appeal within the time limited by law. If this was the motive which led the justice to delay issuing the mittimus, it was of course very reprehensible, but cannot affect the question before us.

The court did not err in quashing the writ.
Judgment affirmed, with costs.

HABEAS CORPUS, TO WHAT EXTENT CAN JUDGments be RevIEWED ON: See extended note to Commonwealth v. Lecky, 26 Am. Dec. 40-49. A judgment erroneous, but not void, sentencing a prisoner does not entitle him to a discharge on habeas corpus: In re Graham, 74 Wis. 450; 17 Am. St. Rep. 174; Barton v. Saunders, 16 Or. 51; 8 Am. St. Rep. 261; Platt v. Harrison, 6 Iowa, 79; 71 Am. Dec. 389, and note; in which case it was also held that while the preliminary examinations of magistrates might be reviewed on habeas corpus, their convictions could not.

JURISDICTION, WANT OF, ONLY QUESTION FOR REVIEW ON HABEAS CORPUS. - Questions involving a want of jurisdiction by the court rendering the judgment may be reviewed on habeas corpus: Ex parte Shaw, 7 Ohio St. 81; 70 Am. Dec. 55; In re Allison, 13 Col. 525; 16 Am. St. Rep. 224, and note. Irregularities not going to the jurisdiction of the court cannot be inquired into on habeas corpus: Ex parte Fil Ki, 79 Cal. 584; Ex parte Brandon, 49 Ark. 143; and the court may amend irregularities: In re Thompson, 9 Mont. 381. Commitment for a wrong offense will not entitle a prisoner to discharge on habeas corpus: Ex parte Keil, 85 Cal. 309. But where the facts charged and proved do not constitute a public offense, the prisoner will be discharged: Ex parte McNulty, 77 Cal. 164; 11 Am. St. Rep. 257, and note.

GREENWALDT v. MAY.

[127 INDIANA, 511.]

JUDGMENT-RELIEF IN EQUITY — FRAUD IN TAKING JUDGMENT FOR COSTS AFTER SETTLEMENT OF PLAINTIFF'S DEMAND. - If a defendant pays the amount of the plaintiff's demand, and enters into an agreement for the dismissal of the action, and thereafter subpoenas witnesses, and causes judgment to be entered against the plaintiff for the costs of procuring them, he is guilty of fraud, and the enforcement of the judgment will be enjoined in equity, if the plaintiff has no remedy in the original action. O. L. Ballou, H. G. Zimmerman, and F. M. Prickett, for the appellants.

P. V. Hoffman, for the appellee.