Ex parte Maher

• Decision Date: 17 March 1944
• Docket Number: 31659.
• Citation: 13 N.W.2d 653,144 Neb. 484
• Parties: Ex parte MAHER. NORTH v. DORRANCE, Sheriff, et al.
• Court: Nebraska Supreme Court

13 N.W.2d 653

144 Neb. 484

Ex parte MAHER.

NORTH v. DORRANCE, Sheriff, et al.

No. 31659.

Supreme Court of Nebraska

March 17, 1944

Syllabus by the Court.

1. Habeas corpus is a collateral, not a direct, proceeding when regarded as a means of attack upon a judgment sentencing a defendant. It cannot be used as a substitute for a writ of error.

2. The writ of habeas corpus is a proper remedy where one is deprived of his liberty by reason of a void judgment.

Grenville P. North, of Omaha, for appellant.

Kelso Morgan, Co. Atty., and Clinton Brome, Deputy Co. Atty., both of Omaha, for appellee.

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

WENKE Justice.

William Maher, as applicant, brought this action in the district court for Douglas county by Grenville P. North, as petitioner, and against William H. Dorrance, sheriff of Douglas county, and Emil Stahmer, keeper of the county jail of Douglas county, as respondents, to obtain his discharge by habeas corpus. From an order denying the application and overruling of the motions for new trial of the applicant and petitioner, the applicant, William Maher, has appealed. Maher will be referred to as the applicant.

The action was heard in the district court upon the applicant's amended petition. The matters therein set forth, by which the applicant claims he is being unlawfully restrained and imprisoned, arise out of the defendant's conviction and sentence for arson in the fourth degree in the case of State v. Maher. That case has been brought to this court by the applicant by error proceedings and is No. 31647, 13 N.W.2d 641. A careful study of the allegations of the amended petition and the errors assigned in applicant's brief show that all of the questions therein raised were also raised by the applicant's petition in error and brief in case No. 31647, Maher v. State, and therein determined.

"'Habeas corpus is a collateral, not a direct proceeding when regarded as a means of attack upon a judgment sentencing a defendant.' Hulbert v. Fenton, 115 Neb. 818 215 N.W. 104." Davis v. O'Grady, 137 Neb. 708, 291 N.W. 82, 85. It cannot be used as a substitute for a writ of error. Hulbert v. Fenton, supra. It cannot be resorted to for the purpose of correcting errors of the trial court rendering the judgment which is challenged in such proceedings. In re Application of Walker, 61 Neb. 803, 86 N.W. 510. "The judgment or sentence of a court of record in a criminal case is thus supported by the usual presumptions of validity annd regularity when thus attacked. To obtain release from a sentence of imprisonment by habeas corpus, such sentence must be absolutely void. Hulbert v. Fenton, supra; Michaelson v. Beemer, 72 Neb. 761, 101 N.W. 1007, 9 Ann.Cas.1181; In re Carbino, 117 Neb. 107, 219 N.W. 846." Davis v. O'Grady, supra.

However, as stated in In re Resler, 115 Neb. 335, 212 N.W. 765, 766 "It is...