In re M. W. Rex

• Decision Date: 05 November 1904
• Docket Number: 14,014
• Citation: 78 P. 404,70 Kan. 221
• Parties: In re M. W. REX, Petitioner
• Court: Kansas Supreme Court

78 P. 404

70 Kan. 221

In re M. W. REX, Petitioner

No. 14,014

Supreme Court of Kansas

November 5, 1904

Decided July, 1904.

Original proceeding in habeas corpus.

Writ denied.

SYLLABUS

SYLLABUS BY THE COURT.

1. HABEAS CORPUS--Authority of Judge at Chambers. A judge at chambers has no authority to change a judgment of the court.

2. HABEAS CORPUS--Commitment--Judgment. Where an order was made at the solicitation of a convicted defendant by a judge at chambers directing the issuance of a commitment of such defendant to the jail of a county other than the one designated in the judgment of the court, such order is without authority, and does not serve to change the judgment in any respect, and the defendant may thereafter be committed in accordance with its terms.

George L. Miller, for petitioner.

C. C Coleman, attorney-general, Albert Hoskinson, county attorney, and W. R. Hopkins, for respondent.

CUNNINGHAM, J. All the Justices concurring.

OPINION

CUNNINGHAM, J.:

This is an original proceeding in this court. The petitioner seeks by a writ of habeas corpus to be discharged from an alleged illegal detention at the hands of A. R. Jessup, sheriff of Finney county. The agreed statement of facts, upon which the case is submitted, shows that the petitioner was informed against in the district court of Hamilton county for a felony. Upon the request of the petitioner the venue was changed to Finney county, where he was convicted, on the 12th day of June, 1903, of a misdemeanor, and was, on the 8th of July, sentenced by the court to pay a fine of $ 250 and the costs of the action, and to stand committed to the jail of Finney county until the fine and costs should be paid. Several orders suspending and staying the judgment were made pending the preparation of the bill of exceptions. On the 27th of November, 1903, an order of commitment to the jail of Finney county was issued, no part of the judgment or costs having been paid. On the 28th of November, the petitioner came in person and by his attorneys before the Honorable William Easton Hutchison, judge of the Finney county district court, at his chambers, and made an application for an order directing that the order of commitment issued out of the district court of Finney county be changed so as to direct that the petitioner be imprisoned in the jail of Hamilton county. This request to the judge was made in writing, and expressly waived the question of the regularity of the making of such an order, and fully consented to the same. Thereupon the following order was made:

"Upon said application's being made to me, it is hereby ordered that said defendant, M. W. Rex, be transferred to the jail of Hamilton county, Kansas, and that a recommitment of said defendant to the jail of Hamilton county issue herein.

WILLIAM EASTON HUTCHISON, Judge.

"All objections and exceptions to the foregoing order are hereby waived.

M. W REX, Defendant.

G. L. MILLER and M. W. SUTTON,

Attorneys for Defendant."

Thereupon an order directed to the sheriff of Hamilton county was issued by the clerk of the district court of Finney county commanding him to commit the petitioner to the jail of Hamilton county, there to remain until the judgment of the court was complied with. On January 30, 1904, an execution was issued, regular in form, by the clerk of the district court of Finney county to the sheriff of Hamilton county, commanding him to levy upon the goods and chattels of the petitioner, and therefrom to make the amount of the fine and costs assessed against him. This execution, having come to the hands of the sheriff of Hamilton county, was levied by him upon eighty acres of land belonging to petitioner. After due advertisement this land was sold for a sum sufficient to pay the fine and costs assessed against Rex, and the money was paid to the sheriff. Thereupon Rex was discharged from custody by the sheriff of Hamilton county. Afterward, a return of this order of sale having been made, Rex filed in the district court of Finney county a motion to set aside the sale, on the ground that the land sold was his homestead and exempt from seizure and sale. This motion was sustained, the sale set aside, and the money returned to the purchaser. The same day, and after this order was made, the court directed the issuance of an order of commitment by the clerk of the district court of Finney county, commanding the sheriff of that county to take into custody the petitioner, and so hold him until the fine and costs assessed against him should be paid....