Hans, In re
| Decision Date | 04 January 1963 |
| Docket Number | No. 35265,35265 |
| Parties | In re Matter of Fred M. HANS, Jr., a minor child. STATE of Nebraska ex rel. Kenneth WEINER, Appellee, v. Fred M. HANS, Jr., a minor child, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Where a court has been established by an act of the Legislature, apparently valid, and the office has been filled and the court has gone into operation, it is to be regarded as a de facto court and its acts and judgments cannot be impeached collaterally for want of legality in the court itself, nor its legal existence questioned except in a direct proceeding brought for that purpose.
2. Constitutionality of separate juvenile court of Douglas County, Nebraska, is not determined.
3. A defendant is not entitled to a jury trial upon a complaint filed in the juvenile court alleging that the defendant is a delinquent child.
4. The admission of immaterial or irrelevant evidence in a trial to the court is not reversible error.
5. A proceeding under the Juvenile Court Act is a special statutory proceeding and the review in this court of such a proceeding is by trial de novo.
6. Upon a review in this court by trial de novo this court will disregard evidence which should not have been admitted by the trial court in a trial to the court.
Nanfito & Nanfito, Doerr & Doerr, Omaha, for appellant.
Clarence A. H. Meyer, Atty. Gen., Mel Kammerlohr, Asst. Atty. Gen., Lincoln, John J. Hanley, County Atty., Donald L. Knowles, Deputy County Atty., Omaha, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.
A complaint was filed in the separate juvenile court of Douglas County, Nebraska, by a deputy county attorney of Douglas County, Nebraska, alleging that Fred M. Hans, Jr., the defendant and appellant, was a neglected and delinquent child. A hearing was held on the complaint, and the defendant was adjudged to be a delinquent child and was committed to the Boys' Training School at Kearney, Nebraska. The defendant's motion for new trial was overruled and he has appealed to this court.
In 1958 the Constitution of Nebraska was amended to provide that the Legislature may establish separate juvenile courts. Art. V, s. 27, Constitution of Nebraska. In 1959 the Legislature enacted a statute providing for the establishment of separate juvenile courts in counties having a population of 50,000 or more inhabitants when authorized by a majority of the electors of the county voting thereon. Section 43-228, R.R.S.1943. The defendant's first contention is that the trial court had no jurisdiction because the statute providing for the establishment of a separate juvenile court in Douglas County, Nebraska, is unconstitutional.
The position of the Attorney General is that the question of the validity of the Separate Juvenile Court Act cannot be raised in this proceeding, but can be raised only in a separate action brought for that purpose. Thus, the first question presented is not the validity of the Separate Juvenile Court Act, but whether the validity of that act can be determined in this proceeding.
The general rule is that the title to an office can be litigated only in a proceeding brought directly for that purpose, and cannot be determined by a collateral attack in another proceeding. Haskell v. Dutton, 65 Neb. 274, 91 N.W. 395; Von Dorn v. Mengedoht, 41 Neb. 525, 59 N.W. 800. A person who exercises the duties of an office under color of an election or appointment by or pursuant to a public, unconstitutional law, before the same is adjudged to be such, is a de facto officer. McCollough v. County of Douglas, 150 Neb. 389, 34 N.W.2d 654; Prucka v. Eastern Sarpy Drainage Dist., 157 Neb. 284, 59 N.W.2d 761. The acts and judgments of a de facto officer are as valid and binding as though performed and rendered by an officer de jure. Dredla v. Baache, 60 Neb. 655, 83 N.W. 916; State v. Kidder, 169 Neb. 181, 98 N.W.2d 800.
Where a court has been established by an act of the Legislature, apparently valid, and the office has been filled and the court has gone into operation, it is to be regarded as a de facto court and its acts and judgments cannot be impeached collaterally for want of legality in the court itself, nor its legal existence questioned except in a direct proceeding brought for that purpose. Burt v. Winona & St. P. R. R. Co., 31 Minn. 472, 18 N.W. 285, 289. See, also, State v. Ness, 75 S.D. 373, 65 N.W.2d 923; Gildemeister v. Lindsay, 212 Mich. 299, 180 N.W. 633; State ex rel. Madden v. Crawford, 207 Or. 76, 295 P.2d 174.
So far as this proceeding is concerned, the jurisdiction of the trial court did not depend upon the validity of the Separate Juvenile Court Act. Consequently, no issue could be raised in this proceeding concerning the validity of the statute. It is unnecessary for us at this time to consider further the contentions of the defendant regarding the validity of the act and we make no determination of them.
The defendant also contends that the trial court erred in failing to grant the defendant a jury trial, in permitting the complainant to subpoena an accomplice for the purpose of being identified by the witnesses for the complainant, and in finding the defendant to be delinquent at the close of the evidence of the complainant and before hearing the evidence of the defendant; and that the evidence is not sufficient to sustain the finding of delinquency.
The complaint alleged that the defendant was delinquent in that he was involved in the unlawful taking of an automobile on July 1, 1961, and lacked proper parental care. Prior to the hearing on the complaint the defendant moved for a jury trial. The defendant argues that his motion should have been sustained because section 43-202, R.R.S.1943, provides that: 'In all trials under this act where a delinquent child is charged with a crime, any person interested therein may demand a jury or the judge of his own motion may order a jury to try the case; * * *.'
The complaint in this case did not charge the defendant with a crime. The defendant was alleged to be a delinquent child and the allegations as to the taking of an automobile had reference only to the charge of delinquency. This question has been considered by the court proviously, and it has been determined that the defendant, under such circumstances, has no right to a jury trial. Laurie v. State, 108 Neb. 239, 188 N.W. 110. See, also, Swanson v. State, 105 Neb. 761, 181 N.W. 921; State v. McCoy, 145 Neb. 750, 18 N.W.2d 101; Krell v. Mantell, 157 Neb. 900, 62 N.W.2d 308, 43 A.L.R.2d 1122; Fugate v. Ronin, 167 Neb. 70, 91 N.W.2d 240; State ex rel. Miller v. Bryant, 94 Neb. 754, 144 N.W. 804; 31 Am. Jur., Juvenile Courts and Delinquent, Dependent, and Neglected Children, s. 67, p. 333; 50 C.J.S. Juries s. 80, p. 788. The motion was properly overruled.
The theory of the complainant was that the defendant assisted James Gillham in the unlawful taking of an automobile. James Gillham did not testify for the complainant and the defendant complains that it was improper for the court to permit Gillham to be present and be identified by the witnesses for the complainant.
The defendant relies upon People v. Rezek, 4 Ill.2d 164, 122 N.E.2d 272, in support of his contention. In the Rezek case a conviction for armed robbery was reversed where the State had been permitted to have its witnesses identify some of the defendant's accomplices before the jury. In a later case, People v. Keagle, 7 Ill.2d 408, 131 N.E.2d 74, the Illinois court held that where the identification of accomplices is relevant, such evidence is admissible.
The hearing before the juvenile court in this case was a trial to the court. The admission of immaterial or irrelevant evidence in a trial to the court is not reversible error. Laurie v. State, supra. The review in this court is by trial de novo, and evidence which should not have been admitted by the trial court will be disregarded by this court in arriving at its decision....
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