OPINION
Willoughby, J.
It
appears from the record in this cause that the defendant
William A. Baird, was, on April 30, 1923, the duly elected,
qualified and acting sheriff of Clark county, Indiana, and
had been such ever since January 1, 1923; that the
petitioner, Harry Nagel, was, on April 30, 1923, and since
February 24, 1923, had been confined in
the county jail in Clark county, Indiana, by virtue of a
commitment issued on February 24, 1923, by Henry A. Burtt,
Special Judge of the city court of the city of
Jeffersonville, Indiana, under the following commitment:
"STATE OF INDIANA COUNTY OF CLARK
To the Jailor of said County:
WHEREAS, Harry Nagel has been tried before me as Special
Judge and adjudged guilty of the offense of possessing
intoxicating liquor with intent to sell the same, and by me
fined in the sum of $ 400 and costs of $ 30 total fine and
costs $ 430, and judgment rendered thereon for said sum to
which was added a jail sentence of sixty (60) days. You are
therefore commanded to confine him in the county jail for the
space of sixty days unless sooner discharged by law, and if,
at the expiration of said sixty days said Nagel has failed to
pay or replevy said fine and costs amounting to $ 430 then
you will continue his confinement in said county jail for a
period of three hundred and seventy (370) days.
Dated this 24th day of February, 1923.
Henry A. Burtt,
Special Judge."
That on
April 30, 1923, Harry Nagel, filed his verified petition in
the cause, entitled Harry Nagel v. Wm. A. Baird, Sheriff of
Clark county, Indiana, by which petition it is shown that he
is unlawfully restrained of his liberty and is wrongfully
imprisoned and that upon such petition, the court ordered
that a writ of habeas corpus should be issued and
the same was issued and the defendant in said cause, Wm. A.
Baird, Sheriff of Clark county, Indiana, was ordered to have
the body of Harry Nagel before the Judge of the Clark Circuit
Court on April 30, 1923, and such proceedings were had in
said cause that it came to trial on May 1, 1923, and on said
May 1, 1923, the court entered judgment releasing the said
Harry Nagel from custody. It appears from the record that a
motion for a new trial was filed on May 2, 1923, but the
motion was not ruled upon until September 11, 1923, when it
was overruled.
The transcript was filed in this court November 16,
1923. On November 30, 1923, the appellant filed a motion to
dismiss, with proof of service of notice. Said motion was
verified and omitting the caption, jurat and signature is as
follows:
"That
appellant in the above entitled cause respectfully moves the
court to dismiss said cause for the reasons following: (1)
That said appellant did not authorize or consent to said
appeal, or any other appeal from the judgment of the Clark
Circuit Court in said cause, but expressly refused to appeal
said cause and had no knowledge that said cause had been
appealed until after the transcript had been filed, the cause
docketed and newspaper comment on said appeal published. (2)
That said appellant was represented in the Clark Circuit
Court by Burdette C. Lutz, county attorney; that James L.
Bottorff, who purports to represent appellant in said appeal,
is the prosecuting attorney for the fourth judicial circuit,
and, as such prosecuting attorney, voluntarily appeared in
defense of said cause in the Clark Circuit Court but without
any employment by, or authority to bind, this appellant, that
one Joseph H. Warder, who is mayor of the city of
Jeffersonville, and ex-officio Judge of the city court of
Jeffersonville, also appeared with James L. Bottorff, in
defense of said cause in the Clark Circuit Court, but without
any employment by, or authority to bind, appellant. That said
James L. Bottorff, prosecuting attorney, as aforesaid
requested appellant to appeal from the decision of said Clark
Circuit Court, but that this appellant, acting under the
advice of said Burdette C. Lutz, then refused, and has ever
since refused to appeal said cause; that the bill of
exceptions and transcript in said cause were prepared and
filed without appellant's knowledge or consent; that
appellant neither signed a notice to the appellee and to the
clerk of the Clark Circuit Court of his
intention to take a vacation appeal, nor did he authorize
said James L. Bottorff or any other person, to sign such
notice as his attorney or agent."
On
December 7, 1923, James L. Bottorff, filed an affidavit in
opposition to the motion to dismiss. In such affidavit, he
alleges that he is the duly elected, commissioned and
qualified prosecuting attorney of the fourth judicial circuit
of the State of Indiana; that a writ of habeas
corpus was issued against appellant, as sheriff, same
made returnable forthwith. That this affiant was notified of
the filing of such petition for writ of habeas
corpus and that he appeared in said cause solely by
reason of his official position and for the purpose of
protecting the rights and interests of the State of Indiana
and in another place in said affidavit, affiant says that
"said affiant talked with appellant at various times
regarding the appeal of said cause but that on each of said
times said appellant stated that he did not desire to appeal
said cause but this affiant informed said appellant that he
intended to appeal said cause on behalf of the State of
Indiana, as he believed that said appellant was only
interested as the appellant therein, figuratively speaking,
but that he believed that the State of Indiana was the real
party in interest therein, and that it had the right to
appeal said cause regardless of whether appellant was willing
to do so or not. * * * That said affiant secured a general
bill of exceptions and tendered the same to the court for
settlement and signing, and filed the same in the office of
the clerk of said court, and has personally paid the charges
occasioned by the preparation of both the general bill and
the transcript of the record in said cause. * * * That when
said transcript was prepared this affiant forwarded the same
to the Honorable Ulysses S. Lesh, Attorney-General of the
State of Indiana, for filing, and also prepared the brief for
the purpose of printing the same without any
expense to said appellant whatsoever. That said affiant, upon...
