Ex parte Cottrell

• Decision Date: 22 August 1882
• Citation: 13 Neb. 193,13 N.W. 174
• Parties: EX PARTE COTTRELL.
• Court: Nebraska Supreme Court

13 Neb. 193

13 N.W. 174

EX PARTE COTTRELL.

Supreme Court of Nebraska.

Filed August 22, 1882.

Application for writ of habeas corpus.

Isham Reavis, for petitioner.

MAXWELL, J.

This is an application for a writ of habeas corpus. The petitioner alleges that at the March, 1879, term of the district court of Richardson county he was adjudged to be the reputed father of a bastard child theretofore born of one Nancy Perkins, an unmarried woman, and he was adjudged to pay the sum of $10.85 per month for the maintenance of such child until he should be 10 years of age, and also the costs of prosecution, and was required to execute a bond to said county in the sum of $1,000, with approved security, for the performance of such judgment; and in case of default he was to be committed to the jail of said county.

It appears that the petitioner has failed to comply with the judgment of the court, and has been committed to prison, from which he now seeks to be discharged on habeas corpus. The principal ground upon which a discharge is sought is that the act providing for imprisonment in such cases is in conflict with the constitution. Section 20 of article 1 of the constitution provided that “no person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud.” Is a proceeding in bastardy a civil action?

In Cottrell v. State, 9 Neb. 125, [S. C. 1 N. W. REP. (N. S.) 1008,] it is said the proceeding is in the nature of a civil action to enforce the performance of a civil and moral obligation.

In Musser v. Stewart, 21 Ohio St. 356, it is said: “This is not a suit to recover a sum of money owing from the defendant to the complaining party. The liability sought to be enforced is not founded on contract, express or implied, but originates in the wrongful act of the defendant, against the consequence of which the statute is designed to protect the public.”

In Hootman v. Shimer, 15 Ohio St. 43, it was held that the provisions of the Code for the discharge of persons imprisoned for debt had no application to the case of a defendant imprisoned by order of the court under the bastardy act.

In Holmes v. State 2 G. Greene, 501, it was held that that portion of the act which authorized imprisonment was unconstitutional and void. That case evidently was decided under a misapprehension of the law, and we have been unable to find any case where it is cited with approval.

The proceeding, while in the nature of a civil...