Baird v. Nagel

• Decision Date: 08 January 1924
• Docket Number: No. 24493.,24493.
• Citation: 194 Ind. 87,142 N.E. 9
• Parties: BAIRD, Sheriff, v. NAGEL.
• Court: Indiana Supreme Court

194 Ind. 87

142 N.E. 9

BAIRD, Sheriff,

v.NAGEL.

No. 24493.

Supreme Court of Indiana.

Jan. 8, 1924.

Appeal from Circuit Court, Clark County; James W. Fortune, Judge.

Habeas corpus by Harry Nagel against William A. Baird, Sheriff of Clark County, Ind. From a judgment releasing plaintiff from custody, defendant appeals. Dismissed.

U. S. Lesh, Atty. Gen., and James L. Bottorff, of Jeffersonville, for appellant.

WILLOUGHBY, J.

It appears from the record in this case:

That the defendant, William A. Baird, was on April 30, 1923, the duly elected, qualified, and acting sheriff of Clark county, Ind., and had been such ever since the 1st day of January, 1923. That the petitioner, Harry Nagel, was on April 30, 1923, and since the 24th day of February, 1923, had been, confined in the county jail in Clark county, Ind., by virtue of a commitment issued on the 24th day of February, 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 60 days: You are therefore commanded to confine him in the county jail for the space of 60 days unless sooner discharged by law, and if, at the expiration of said 60 days, said Nagle 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 370 days.

Dated this 24th day of February, 1923.

Henry A. Burtt, Special Judge.”

That on the 30th day of April, 1923, Harry Nagel, filed his verified petition in the cause, entitled Harry Nagel v. Wm. A. Baird, Sheriff of Clark County, Ind., 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, Ind., was ordered to have the body of Harry Nagel before the judge of the Clark circuit court on the 30th day of April, 1923, and such proceedings were had in said cause that it came to trial on the 1st day of May, 1923, and on said 1st day of May, 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 the 2d day of May, 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:

“The 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 bills 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...