In re Application of John Walker For a Writ of Habeas Corpus, 11,977

CourtSupreme Court of Nebraska
Writing for the CourtHOLCOMB, J.
Citation86 N.W. 510,61 Neb. 803
Docket Number11,977
Decision Date22 May 1901

86 N.W. 510

61 Neb. 803


No. 11,977

Supreme Court of Nebraska

May 22, 1901

ORIGINAL application for a writ of habeas corpus to release the relator from commitment to enforce a judgment of filiation. Writ denied.

Writ denied.

Matthew Gering, for relator.

Jesse L. Root, C. S. Polk and C. E. Tefft, contra.


[61 Neb. 805] HOLCOMB, J.

The petitioner, John Walker, brings an original action in this court for a writ of habeas corpus, alleging in his petition that he is unlawfully restrained of his liberty by the sheriff of Cass county, in whose custody he is held by virtue of a capias writ issued out of the district court of said county. It appears from the record that the writ was issued on a judgment of filiation, rendered in an action pending in said court against the petitioner, in which said judgment it was ordered by the court that the defendant, the petitioner, pay to the plaintiff in the action the sum of $ 138.75, for the care and expense connected with the birth, care and death of a bastard child, he being adjudged to be the reputed father, and the costs of the action; in default of which payment or the securing of the payment thereof, the defendant should be committed to the jail of the county until the judgment be [86 N.W. 511] complied with. The facts in the case are stipulated by the parties. There are but two questions of controlling importance, necessary to be considered in a proper determination of the controversy, which will appear in the further discussion of the subject. In September, 1900, a complaint was entered by Lillie Parker, an unmarried woman, before a justice of the peace of Cass county, under the provisions of chapter 37 of the Compiled Statutes of 1899, charging the defendant with being the father of her illegitimate child, of which she had been delivered a short time previous. A warrant was issued and the defendant arrested and brought before the justice, and upon defendant's application a continuance of the hearing contemplated by statute was had, and he entered into a recognizance to appear at the time to which the hearing was continued. Upon a hearing had before the justice of the peace as to the truth of the charge made against the defendant, at which he was present, evidence was submitted and reduced to writing as required by statute, upon consideration of which it was found that the complaint [61 Neb. 806] was established; and the defendant was required to enter into a recognizance in the sum of $ 500 for his appearance at the next term of the district court, to answer the accusation made against him and abide the order of the court. The defendant was placed in the custody of a constable for the purpose of securing the recognizance required, and, neglecting to give the same, a mittimus was issued authorizing his commitment to the jail of the county. Before execution of the mittimus the defendant escaped from the custody of the constable and fled to the state of Iowa. A transcript of the complaint and all proceedings had before the justice of the peace was duly made, certified and filed in the office of the clerk of the district court of Cass county on the first day of the next term thereof held after the preliminary hearing had before the justice of the peace. The defendant failing to appear at said term of the district court, his default was duly taken and entered, and the case coming on for hearing, evidence was submitted to the court without the intervention of a jury, upon consideration whereof it was by the court adjudged that the defendant was the reputed father of the bastard child of the plaintiff, liable for its support and maintenance, and awarding judgment accordingly as herein first mentioned. The defendant was afterwards arrested on a capias issued upon the judgment and held in custody because of his failure and default in complying with the judgment so rendered.

It is contended by counsel for the petitioner, and argued in his brief, that the judgment, which is the foundation for the process directing the arrest and imprisonment of the defendant, is void for want of jurisdiction over his person of the court rendering the judgment, the precise question being that because the defendant was not personally present in court and had entered into no recognizance for his presence thereat, and having fled from the custody of the officer detaining him under the mittimus, jurisdiction by the district court was never [61 Neb. 807] acquired over his person. We are, therefore, to inquire in what manner does the district court obtain jurisdiction in a proceeding of the character under consideration? Is it by filing a transcript of the complaint and proceedings had before a justice of the peace,--who, it must be conceded, in this case was empowered to act and had the jurisdiction which was exercised at the preliminary inquiry,--or must the personal presence of the defendant, voluntarily or involuntarily, be had in the district court before it is authorized to render judgment in the case?

Preliminary to what follows we, perhaps, should here note that habeas corpus proceedings can not be resorted to for the purpose of correcting errors of the trial court rendering the judgment which is challenged in such proceedings. If the prisoner is held under a process in due form issued upon a judgment, he can not obtain his discharge by habeas corpus, unless the judgment is void and not merely voidable. Freeman, Judgments, sec. 619, citing Ex parte Marx, 86 Va. 40; In re Coy, 127 U.S. 731, 757, 32 L.Ed. 274, 8 S.Ct. 1263, and Ex parte Watkins, 3 Peters 191, 202. The bastardy proceedings must also be regarded as essentially a civil action, accompanied by the extraordinary remedy of arrest and imprisonment for the purpose of enforcing a judgment rendered in the case. Ex parte Cottrell, 13 Neb. 193, 13 N.W. 174; Altschuler v. Algaza, 16 Neb. 631, 21 N.W. 401; Strickler v. Grass, 32 Neb. 811, 49 N.W. 804. While in its character the proceeding is a civil action under the statute, the act is, properly speaking, the exercise of the police power of the state, the object of which is to require the putative father, in compliance with his moral obligation, to furnish support for his child and indemnify the public against liability for its care and keeping, "to compel him to assist in the maintenance of the fruit of his immoral act" and to prevent the child from becoming a county charge. Stoppert v. Nierle, 45 Neb. 105, 117, 63 N.W. 382, and cases therein cited. It is practically conceded that the justice of the peace, before whom the preliminary proceedings [61 Neb. 808] were had in the case, had jurisdiction and authority to act regarding the case, in so far as his powers were exercised. This jurisdiction was obtained by the filing of the statutory complaint, duly verified, and the issuance of a warrant thereon, and the arrest of the defendant. The process by which the court acquired jurisdiction over the defendant was the warrant issued for his arrest, and its execution serves the same office as the service of a summons in an ordinary civil action; and the court [86 N.W. 512] thereby acquired jurisdiction over the person of the defendant. Altschuler v. Algaza, supra; Beckett v. State, 4 Ind.App. 136, 30 N.E. 536. The justice can not try the case. He may make only an examination, and, if the evidence warrants it, require the defendant to enter into a recognizance to appear at the next term of the district court, there to answer the complaint and abide by the order of the court. This proceeding, however, is required only in the event of the defendant's failure to comply with the provisions of section 1, for the payment of money or transfer of property to the plaintiff, and to give an obligation to save the county free from charge toward the maintenance of the child; if the defendant comply with these provisions, he is entitled to be discharged. On the district court, the statute has conferred original jurisdiction to try the case on its merits, render judgment of filiation, and for the maintenance of the illegitimate child in such sum as may be ordered. Munro v. Callahan, 41 Neb. 849, 60 N.W. 97.

Has the district court jurisdiction for this purpose when a defendant has not personally appeared therein, under the facts and circumstances as in the case at bar? In Altschuler v. Algaza, supra, it is held in the syllabus: "In a proceeding under the bastardy act the district court acquires jurisdiction by the filing of the transcript of the proceedings before the justice, based on a proper complaint, arrest of the accused, and order requiring him to appear before the district court for trial." The record in this case discloses that a transcript of all the proceedings [61 Neb. 809] had before the justice of the peace were duly filed in the office of the clerk...

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