¶1On the 18th day of May, 1922, one Edna Alice McAlpine was imprisoned in the county jail of Minnehaha county, S. D., on a commitment duly given by the municipal court of the city of Sioux Falls. On her application, a writ of habeas, corpus issued directed to Herman Wangsness, as sheriff of said county and the person holding her in custody under said commitment.
¶2On return of the writ, the circuit court of Minnehaha county,. Hon. John T. Medin, Judge, ordered her released. She was at once discharged and ever since has been at liberty.
¶3Seasonably thereafter, said, Herman Wangsness, as sheriff and person in charge of said McAlpine, appealed to this court fromi the order releasing 'her. McAlpine now moves to, dismiss, this appeal on two grounds: First, that no undertaking was made,, served or filed on this appeal; second, that no appeal lies from an: order discharging a person from custody in habeas corpus proceedings.
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¶6The authorities are' not in accord as to whether a decision in habeas corpus is reviewable. 21 Cyc. 338. But following what we think is the better reasoning, and also following the precedents established by this court, we hold the decision of the- circuit court, either granting or refusing a release in habeas corpus, is a final order affecting a substantial right, maci’e in a special proceeding, and from such final order an appeal will lie to this court. In re Hammill, 9 S. D. 390, 69 N. W. 577, and other South Dakota cases cited supra; 21 Cyc. 338 and cases cited in note 27; David Henderson v. James, 32 Ohio St. 242, 39 N. E. 805, 27 L. R. A. 290; State ex rel Durner v. Huegin, 110 Wis. 189, 85 N. W. 1046, 62 L. R. A. 700; State ex rel McCaslin v. Smith, 65 Wis. 93, 26 N. W. 258; Atwood v. Atwater, 34 Neb. 402, 51 N. W. 1073; In re Scrafford, 59 Hun. 320, 12 N. Y. Supp. 943; Harkrader v. Wadley, 172 U. S. 148, 19 Sup. Ct. 119, 43 L. Ed. 399; Martin v. District Court, 37 Colo. 110, 86 Pac. 82, 119 Am. St. Rep. 262; Barranger v. Baum, 103 Ga. 465, 30 S. E. 52468 Am. St. Rep. 113; State v. Whitcher, 117 Wis 668, 94 N. W. 787, 98 Am. St. Rep. 968.
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*78“The privilege of the writ of habeas corpus shall not be suspended unless, when in case of rebellion or invasion, the public safety may require it.”
¶8We fail to see how our entertaining this appeal in any way violates that constitutional provision. The defendant is at liberty. She cannot again be arrested on the warrant or held under the commitment from which she was released by habeas corpus. R. C. 1919, §§ 4983-4990. She has had the full benefit of the writ and is free. Thomas H. Macready v. John H. Wilcox, 33 Conn. 321.
¶9The state is taking this appeal to settle a question of law. O'ur final decision will have no other effect in this case than to settle such question and possibly prevent future errors in the use of-the writ.
¶10The motion to dismiss is denied.
¶11Note — Reported in 190 N. W. 883. . See American Key-Numbered Digest, (1) Appeal and Error, Key-No-. 374, 3 C. J. Sec. 1162; (2) Habeas Corpus, Key-No. 113(3), 29 C. J. Sec. 210; (3) Habeas Corpus, KeynN-o. 122, 29 C. J. 234.
¶12On effect of appeal as stay of judgment in habeas corpus proceedings, see note L. R. A. 1915C, 923.
¶13On right of state or public officer to appeal from an order in habeas corpus releasing one from custody, see note 10 Á. L. R. 38 5.