In re Joseph Swehla (Romeo Swehla v. Malone
| Decision Date | 10 November 1923 |
| Docket Number | 25,074 |
| Parties | In re JOSEPH SWEHLA (ROMEO SWEHLA, Appellant), v. H. B. MALONE, Respondent, Appellee |
| Court | Kansas Supreme Court |
Decided July, 1923.
Appeal from Ellsworth district court; DALLAS GROVER, judge.
Judgment reversed.
SYLLABUS BY THE COURT.
1. HABEAS CORPUS -- Defendant Under Sixteen Years of Age -- Police Court Without Jurisdiction--Judgment Absolutely Void. The juvenile court has exclusive jurisdiction to try all children under sixteen years of age for offenses charged to have been committed by them, and a judgment of conviction of the police court of a child under that age is absolutely void.
2. SAME--Judgment of Inferior Court--Not Open to Presumption of Verity of Proceedings. A judgment of an inferior court of limited jurisdiction is not open to the presumption of verity and validity accorded to judgments of superior courts of general jurisdiction.
3. SAME--Judgment of Police Court--Open to Collateral Attack. The judgment of the police court was open to collateral attack for lack of jurisdiction and when its jurisdiction was challenged the absence of jurisdiction could be shown by extrinsic evidence.
O. A Wilson, of Ellsworth, for the appellant.
Samuel E. Bartlett, of Ellsworth, for the appellee.
This is a proceeding in habeas corpus originally brought in the probate court of Ellsworth county by Romeo Swehla obtain the release of his son, Joseph Swehla, from the custody of H. B. Malone, the city marshal of the city of Ellsworth.
Joseph Swehla was prosecuted in the police court of the city of Ellsworth for driving an automobile through the public streets of the city at an excessive rate of speed in violation of a city ordinance. He was arrested and brought before that court where a trial was had which resulted in the conviction and a sentence to pay a fine of $ 5 and stand committed until the fine and costs were paid. Neither the fine nor the costs have been paid, nor has any appeal been taken from the judgment. Instead the petitioner applied to the probate court for a release of Joseph on the ground that the police judge had no jurisdiction to try the complaint or impose the judgment that was rendered. He alleged that Joseph Swehla was a minor under the age of sixteen years at the time the complaint against him was filed in the police court and therefore that the judgment rendered was without force. The probate court held that Joseph was entitled to a release and discharged him. The marshal and the city of Ellsworth appealed from the judgment to the district court and that court sustained a motion for judgment on the pleadings and remanded the prisoner to the custody of the marshal. From that judgment the petitioner appeals.
It is alleged and not specifically denied that Joseph was less than sixteen years of age, and the proceedings in the police court do not show that any inquiry was made as to his age. It is contended by the petitioner that under the juvenile court act when a minor under sixteen years of age is arrested, he must be taken at once before the juvenile court and no justice of the peace or police magistrate shall have jurisdiction of the offense charged, but he shall transfer the case to the juvenile court, and that no punishment or penalty can be imposed against delinquents under the age of sixteen years by any other court or officer other than the judge of the juvenile court. (Gen. Stat. 1915, §§ 3075, 3077, 3078.) It is therefore insisted that the minor being under sixteen years af age the police court was without jurisdiction and that its judgment is absolutely void.
On the other hand the city contends that the defendant is not entitled to the remedy of habeas corpus as a final judgment was rendered against him in the police court and the judgment rendered determined every question including the age of the minor, and however erroneous or irregular or whatever lack of evidence there may have been, the judgment must be sustained as against an attack by habeas corpus. The appellee argues that since it appears that a complaint was filed, a warrant issued, an arrest made and the prisoner brought before the court where a trial was had, and a judgment rendered imposing a fine it must be presumed and held that the court had jurisdiction of his person and of the subject matter of the charge and had adjudicated every question involved in the case, including the essential fact that the prisoner was more than sixteen years of age and was subject to the jurisdiction of the court. It is further argued that all the essential elements are conclusively presumed to be included in the judgment whether or not they are in fact recited in it and therefore it is not open to collateral attack. There was no recital in the judgment in respect to the age of the prisoner. After reciting the appearances it proceeded:
These recitals were followed by the judgment imposing a fine and committing him to jail until the fine and costs were paid.
If the child prosecuted and...
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