Gillard v. Clark
| Decision Date | 27 September 1920 |
| Docket Number | 21455 |
| Parties | FRED GILLARD v. MICHAEL L. CLARK, SHERIFF |
| Court | Nebraska Supreme Court |
ERROR to the district court for Franklin county: WILLIAM A DILWORTH, JUDGE. Affirmed.
AFFIRMED.
Baker & Ready and Samuel O. Cotner, for plaintiff in error.
Bernard McNeny, contra.
The district court for Douglas county sentenced Fred Gillard to 60 days in the county jail for nonsupport of his wife and child. Gillard applied to the district court for Franklin county for a writ of habeas corpus, alleging that his commitment was illegal. A hearing was had and the petitioner was ordered discharged. Respondent, the sheriff of Douglas county, has brought the case to this court for review.
A motion to dismiss the petition in error has been filed by the petitioner on the grounds, among others, that an order discharging a prisoner on habeas corpus is not reviewable; that, if such order is reviewable, the proceedings must be taken by the state through the attorney general, or his representative, and cannot be brought by a custodial officer; and that the motion for a new trial was not filed within the statutory time.
1. At common law a judgment remanding or discharging a prisoner in a habeas corpus proceeding was not reviewable. 12 R. C. L. 1256, sec. 74. In this state, however, the right of review in such cases has always been recognized. And ever since Atwood v. Atwater, 34 Neb. 402, 51 N.W. 1073, where the question appears first to have been raised, this review has been permitted to the state as well as the petitioner. There is no force in the petitioner's argument that the only right of review in a habeas corpus proceeding, where the prisoner has been discharged, is under section 515 of the Criminal Code (Rev. St. 1913, sec. 9185), on exceptions taken by the attorney general or county attorney for the purpose of obtaining a ruling from this court on a question of law, but in no way affecting the liberty of the petitioner.
2. Was the respondent a proper party to prosecute this case? It is well established that a public officer entrusted with the custody of a prisoner who is made respondent in a habeas corpus proceeding has the right to a review of an order discharging the prisoner. State v. Huegin, 110 Wis. 189, 62 L. R. A. 700, 85 N.W. 1046; Miller v. Gordon, 93 Kan. 382, 144 P. 274; Davis v. Smith, 7 Ga.App. 192, 66 S.E. 401. These cases are in accord with the spirit of our Code provisions.
3. We come now to a consideration of the motion for a new trial. The judgment of the trial court was rendered October 15, 1919. The motion for a new trial was filed October 17, 1919. Court had adjourned its term October 16, 1919. The motion was filed within the three-day period prescribed by statute, but not before the close of the term. At a subsequent term the court overruled the motion. On the succeeding day respondent filed a showing that he was "unavoidably prevented" from filing the motion for a new trial during the term at which the judgment was rendered. Whatever may be the sufficiency of the showing to excuse the delay in filing the motion for a new trial, we cannot consider the affidavit for the reason that there is nothing in the record to indicate that the district court was ever apprised of the facts contained in it. We are therefore not at liberty to review any of the questions which were required to be presented to the district court by motion for a new trial. Tait v. Reid, 91 Neb. 235, 136 N.W. 39.
4. This does not, however, prevent us from passing upon the question whether the district court had jurisdiction to issue the writ in this case. In In re White, 33 Neb. 812, 51 N.W 287, this court held that ordinarily habeas corpus proceedings should be instituted in the county where the unlawful restraint is alleged to exist. In State v. Porter, 78 Neb. 811, 112 N.W. 286, it was held that, when the right of personal liberty makes it necessary, the district court or a judge thereof at chambers may, in the exercise of a sound legal discretion, issue a writ of habeas corpus to another county of the state outside of his judicial district. That case involved the right to the custody of a child as between father and grandparents. The argument in support of...
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Anderson v. Houston
...matter jurisdiction. After an evidentiary hearing, the district court concluded that it had jurisdiction. This conclusion was based on Gillard v. Clark,1 which the district court read as standing for the proposition that jurisdiction in habeas proceedings can effectively be transferred from......
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Tail v. Olson, 31795.
...to release a prisoner confined under sentence of court must be brought in the county where the prisoner is confined.” Gillard v. Clark, 105 Neb. 84, 179 N.W. 396, 397. The Constitution of Nebraska, art. I, sec. 24, provides: “The right to be heard in all civil cases in the court of last res......
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Neudeck, Application of, 34381
...of law occurring at the trial may not be considered by this court. See, Oertle v. Oertle, 146 Neb. 746, 21 N.W.2d 447; Gillard v. Clark, 105 Neb. 84, 179 N.W. 396, 397. As stated in Gillard v. Clark, supra: 'We are therefore not at liberty to review any of the questions which were required ......
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Ex parte Tail
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