Application of Dunn v. Jones

• Decision Date: 21 January 1949
• Docket Number: 32528.
• Citation: 35 N.W.2d 673,150 Neb. 669
• Parties: Application of DUNN. v. JONES.
• Court: Nebraska Supreme Court

35 N.W.2d 673

150 Neb. 669

Application of DUNN. v. JONES.

No. 32528.

Supreme Court of Nebraska

January 21, 1949

Appeal from District Court, Lancaster County; Wilson, Judge.

Syllabus by the Court

1. Habeas corpus is a writ of right but not a writ of course and probable cause must first be shown for its allowance, which rightly prevents the writ from being trifled with by those who manifestly have no right to be at liberty.

2. In a petition for a writ of habeas corpus, if relator sets forth facts which, if true, would entitle him to discharge then the writ is a matter of right and relator should be produced and a hearing held thereon to determine questions of fact presented, but if relator shows by the facts alleged in his petition for the writ that he is not entitled to relief then the writ should be denied.

3. The sufficiency of the allegations or relator's petition to support a writ of habeas corpus allowed by virtue thereof, may be questioned before making return thereto by a motion to dissolve or quash the writ.

4. Such motion admits all ultimate facts well pleaded in relator's petition, as distinguished from conclusions of law therein, and when thus tested it is ascertained that the allegations thereof are not sufficient to warrant discharge, the motion should be sustained and the writ dissolved or quashed.

5. The existence of a right is one matter; the availability of a particular remedy in which that right may be asserted is distinctly a separate matter.

6. The sole issue ordinarily presented upon an application for a writ of habeas corpus by a prisoner held pursuant to judgment, sentence, and commitment in a criminal case, is the validity of the judgment, sentence, and commitment involved therein.

7. In the absence of a special statute authorizing it, habeas corpus is not available as a remedy for the purpose of inquiring into the legality of a particular form, manner, or place of confinement executively or administratively imposed upon a prisoner lawfully in custody in a proper or authorized jail or prison under a valid existent and enforceable judgment, sentence, and commitment.

Walter R. Johnson, Atty. Gen., Leslie Boslaugh, Asst. Atty. Gen. and C. S. Beck, Deputy Atty. Gen., for appellant.

George I. Craven, of Lincoln, for appellee.

Heard before SIMMONS, C. J., PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

CHAPPELL Justice.

Relator, hereinafter called plaintiff, filed a petition in the district court for Lancaster County against respondent, hereinafter called defendant, alleging that plaintiff was unlawfully deprived of his liberty and praying for a writ of habeas corpus and discharge from unlawful imprisonment, namely, solitary confinement in the Nebraska State Penitentiary.

Plaintiff's petition alleged in substance that on December 7, 1944, the district court for Douglas County sentenced and committed him to the Nebraska State Penitentiary for a period of 10 years from that date at hard labor, for the crime of robbery aggravated by habitual criminality. A certified copy of the judgment upon the verdict of guilty by a jury, sentence, and order of commitment was attached to the petition and made a part thereof. The validity thereof was not attacked or denied in any manner by plaintiff, but he alleged that without cause or lawful authority, and in spite of a provision therein that 'no part of which said period of time is by virtue of this sentence to be spent in solitary confinement,' plaintiff was and had been for some time held in solitary confinement by defendant within the penitentiary.

An order allowing the writ was entered, and the writ was issued and served, returnable June 11, 1948.

On June 10, 1948, defendant filed a motion to quash the writ for the reason that plaintiff's petition failed to state facts sufficient to constitute a cause of action against defendant or to afford plaintiff relief in habeas corpus. On June 11, 1948, the motion was argued, submitted, and overruled, at which time defendant was required to file return in 10 days, and the cause was by stipulation set for trial, consolidated with In re Application of Bortles (Bortles v. Jones), Neb., 35 N.W.2d 679. Thereafter, defendant duly filed a return to the writ, and the causes were thus tried and submitted on their merits.

Thereafter, the trial court entered its judgment, finding generally for plaintiff, ordering him released and discharged from solitary confinement, and placed in usual and ordinary confinement with such privileges as are usually granted to usual and ordinary prisoners, subject to future good behavior.

Within proper time, defendant filed motion for new trial, alleging among other grounds therein that plaintiff's petition failed to state facts sufficient to constitute a cause of action against defendant or to afford plaintiff relief in habeas corpus, therefore the trial court erred in overruling defendant's motion to quash the writ.

Defendant's motion for new trial was thereafter overruled, and he appealed, setting forth some 11 assignments of error, among which were the aforesaid alleged errors contained in his motion for a new trial.

Many propositions of law were presented at length in the briefs and argument, but as we view the case the only question which we are required to discuss or decide is whether or not the trial court erred in its refusal to quash the writ, and in doing so we conclude that it did.

Plaintiff's petition discloses that he simply sought specific enforcement of an admittedly existent and valid judgment, sentence, and commitment. As will be hereinafter observed, habeas corpus could not provide him a remedy for that purpose.

As stated in In re Application of Tail (Tail v. Olson), 144 Neb. 820, 14 N.W.2d 840, 842: 'Habeas Corpus is a writ of right, but not a writ of course, and probable cause must first be shown which rightly prevents the writ from being trifled with by those who manifestly have no right to be at liberty. 25 Am.Jur. 153, sec. 16. Judicial discretion is exercised in its allowance, and such facts must be made to appear in the application to the court as in its judgment will, prima facie, entitle the applicant to be discharged from custody. 39 C.J.S., Habeas Corpus, p. 436, § 6; 25 Am.Jur. 238, sec. 131; 29 C.J. 14.'

In McAvoy v. Jones, 149 Neb. 613, 31 N.W.2d 740, 741, this court recently held: 'In a petition for a writ of habeas corpus, if relator sets forth facts which, if true, would entitle him to discharge, then the writ is a matter of right and relator should be produced and a hearing held thereon to determine the questions of fact presented. But if relator shows by the facts alleged in his petition for the writ that he is not entitled to relief, then the writ should be denied.

'The sufficiency of the allegations of relator's petition to support a writ of habeas corpus allowed by virtue thereof may be questioned before making return thereto by a motion to dissolve or quash the writ.

'Such a motion admits all ultimate facts well pleaded in relator's petition as distinguished from conclusions of law appearing therein, and when thus tested it is ascertained that the allegations thereof are not sufficient to warrant discharge, the motion should be sustained and the writ dissolved or quashed.'

In Hawk v. Olson, 146 Neb. 875, 22 N.W.2d 136, 137, it was held: 'The existence of a right is one matter, the availability of a particular remedy in which that right may be asserted is distinctly a separate matter.'

As stated in 39 C.J.S., Habeas Corpus, s. 7, p. 437: 'The writ of habeas corpus ordinarily will not be granted where there is another adequate remedy.' See, also, 29 C.J., Habeas Corpus, s. 9, p. 17. Also as stated in 39 C.J.S. Habeas Corpus, s. 4, p. 430: 'The sole function of the writ is to relieve from unlawful imprisonment, and ordinarily it cannot properly be used for any other purpose.' See, also, 29 C.J., Habeas Corpus, s. 5, p. 12.

It will be observed that by virtue of the provisions in section 29-2801, R.S.1943, 'persons convicted of some crime or offense for which they stand committed,' are specifically excepted from those entitled to the benefit of the act, all of which means in the final analysis that the sole issue ordinarily presented upon an application for a writ of habeas corpus by a prisoner held pursuant to judgment, sentence, and commitment, in a criminal case, is the validity of the judgment, sentence, and commitment involved therein. That is true because a void judgment, sentence, and commitment is a nullity and thus a person held pursuant thereto would not be, legally speaking, within the foregoing exception. Herein, however, their validity is admitted which gave the court only authority to 'recommit' rather than 'discharge such prisoner from confinement.' See, sections 29-2805 and 29-2806, R.S.1943.

As stated in People ex rel. Tweed v. Liscomb, 60 N.Y. 559, 19 Am.Rep. 211, under statutes similar in their applicable provisions with our own: 'Persons committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction, or by virtue of any execution issued upon such judgment or decree, are expressly excluded from the benefit of the act. * * * Such persons are deprived of their liberty 'by due process of law,' and are not within the purview of the Constitution, or the purposes of the writ.'

In Matter of Morhous v. New York Supreme Court, 293 N.Y. 131, 56 N.E.2d 79, 83, speaking of the Tweed case, it was said: 'That case has been recognized as a landmark in the history of the use of the writ of habeas corpus as appropriate process to inquire into the legality of a person's imprisonment even where a person is imprisoned under a judgment of a...