Hier v. Hutchings

Decision Date22 March 1899
Citation78 N.W. 638,58 Neb. 334
PartiesHIER ET AL. v. HUTCHINGS.
CourtNebraska Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Court.

1. To entitle a party aggrieved to a judgment for the amount prescribed by section 361, Code Cr. Proc., it is merely required that the conditions described in said section be shown to exist. The amount of recovery is liquidated by the statute referred to.

2. Where parties seeking relief join in a motion for a new trial and in a petition in error, if relief must be denied as to one it must be denied to all.

Error to district court, Box Butte county; Kinkaid, Judge.

Action by Allen Hutchings against Henry Hier and others. Judgment for plaintiff. Defendants bring error. Affirmed.Wm. Mitchell, for plaintiffs in error.

G. M. Sullivan and R. C. Noleman, for defendant in error.

RYAN, C.

In this action there was a recovery in the district court of Box Butte county of the sum of $500, under the provisions of section 361 of the Code of Criminal Procedure. The jury found specially that Constable Hier received notice, before taking Hutchings into his custody, that Hutchings had already been released on habeas corpus from the custody of an officer by whom he had been arrested upon a mittimus in the same case as that in which was issued the mittimus by virtue of which Constable Hier arrested him, and carried him to the county seat, a distance of about 15 miles; and that said constable continued to hold Hutchings in custody after receiving the notice aforesaid. The section of the Criminal Code above referred to provides that in such case the party offending shall forfeit to the party aggrieved the sum of $500. The evidence fully sustains the findings of the jury, and it is not necessary that we should review it for the purpose of justifying this conclusion. In their nature these damages were general (Bank v. Goos, 39 Neb. 437, 58 N. W. 84), and hence it was proper that the statute should liquidate them, as was done by the provisions of the section above cited. In principle, the same question was decided adversely to the contention of the plaintiffs in error in Bank v. Kurkonski, 45 Neb. 1, 63 N. W. 133, and in Perkins v. Butler Co., 46 Neb. 314, 64 N. W. 975. The sureties on his official bond were joined as defendants with the constable, and the judgment was against all the defendants jointly. Whether or not this was proper, we express no opinion, for the motion for a new trial and the petition in error were made jointly by the parties...

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