In re Havelik

• Decision Date: 17 September 1895
• Citation: 64 N.W. 234,45 Neb. 747
• Parties: IN RE HAVELIK.
• Court: Nebraska Supreme Court

45 Neb. 747

64 N.W. 234

IN RE HAVELIK.

Supreme Court of Nebraska.

Sept. 17, 1895.

Syllabus by the Court.

1. “Mere errors or irregularities in a judgment or proceedings of a court, * * * under and by virtue of which a person is imprisoned, which are not of such a character as render the proceedings void, cannot be reviewed on an application for a writ of habeas corpus. The writ cannot operate as a writ of error.” In re Betts, 54 N. W. 524, 36 Neb. 282, and State v. Crinklaw, 59 N. W. 370, 40 Neb. 759, followed.

2. Where the law did not authorize contempt proceedings, under and by virtue of which a party was imprisoned, there was a lack of jurisdiction, and the judgment void, and habeas corpus a proper remedy to obtain a release from imprisonment.

3. In proceedings in aid of execution, as provided for in sections 532-549, Code Civ. Proc., any property of the judgment debtor, not exempt by law, and in the hands of third persons, may be ordered to be applied to the satisfaction of the judgment, and such order may be enforced by the ordinary legal methods of procedure.

4. An order in proceedings in aid of execution, as provided for in the Code of Civil Procedure, to a third person, to turn over property in his or her possession, to be applied in discharge of the judgment, if disobeyed, cannot be enforced by imprisonment of the party so ordered, as for a contempt, under section 546 of the Code.

Original petition by Barbara Havelik for discharge on writ of habeas corpus. Judgment for petitioner.Reese, Gilkeson, Comstock & Reese, for petitioner.

S. H. Sornborger and Good & Good, for respondent.

HARRISON, J.

It appears from the record in this case that the National Bank of Wahoo obtained a judgment in the county court of Saunders county against Frank Havelik for the sum of $567.34 and costs of suit, upon which execution was issued, of date November 16, 1893, and delivered to an officer, and was returned, “No property found.” On the day of the return of the execution the president of the bank filed with the court an affidavit in which it was stated, with other usual averments, that the defendant, or judgment debtor, was the owner of property not exempt, under the law, from being subjected to the payment of his debts, and which he concealed; and upon application an order was issued, citing the debtor to appear, and answer under oath such inquiries as might be made of him touching his property. The debtor appeared, and as a result of his examination it was concluded that Barbara Havelik, the petitioner herein, had in her possession and control three promissory notes, of the aggregate sum of $2,200, the property of the judgment debtor, and not exempt by law from being applied to the payment of his debts, and that they were placed in her hands for the purpose of hindering and delaying the bank in the collection of the amount due it, and in fraud of its rights in the premises; and thereupon a citation was served upon Barbara Havelik, commanding her to appear and answer concerning any property in her possession, or under her control, belonging to the judgment debtor. This citation she did not obey, and a bench warrant was issued, and she was brought into court and questioned; and, pursuant to the conclusions and findings of the court from the evidence elicited during her examination and that of Frank Havelik, she was ordered to deliver into court, within 10 days, the promissory notes, to be applied towards the payment of the bank's judgment. Of this order there was personal service, but she failed and refused to comply therewith, and a complaint was filed charging her with contempt of court in so failing and refusing to comply with the court's order, and as a result of a hearing upon such complaint she was adjudged guilty of a contempt, and ordered to be confined in the jail of the county until she obeyed the order of the court in reference to the promissory notes; and upon being imprisoned in the county jail she applied to this court for a writ of habeas corpus, which was issued, and the sheriff of Saunders county has made return thereto, and an issue of law has been joined.

It is stated in the applicant's petition, among other things, that the applicant has at all times insisted that the promissory notes in question were her property, and hence she declined to turn them over to the court, to be applied in payment of the debts of Frank Havelik. There are two main questions raised and discussed in the case, as presented here: One is, is habeas corpus the proper remedy, or should the applicant have appealed or prosecuted a writ of error from the decision of the sentencing court? And another,...