In re McCabe

• Decision Date: 07 December 1931
• Docket Number: 2964.
• Parties: In re McCABE.
• Court: Nevada Supreme Court

5 P.2d 538

53 Nev. 463

In re McCABE.

No. 2964.

Supreme Court of Nevada

December 7, 1931

Original application by Harry E. McCabe for a writ of habeas corpus.

Writ denied.

Frame & Raffetto, of Reno, for petitioner.

Melvin E. Jepson, Dist. Atty., A. P. Johnson, Asst. Dist. Atty., and Leon Shore, all of Reno, for respondent.

COLEMAN C.J.

This is an original proceeding in habeas corpus.

It appears from the return that the petitioner was, on November 4, 1931, adjudged in contempt of court for failure to pay alimony and money for the support of his two children of the ages of two and four years, "although such failure was not due to his financial inability," as found by the trial court.

It is the contention of the petitioner that moneys ordered to be paid constitutes a debt, and that under both the federal and state Constitutions no one can be imprisoned for the nonpayment of a debt.

It is further contended that the evidence taken before the lower court showed that petitioner was without means with which to comply with the terms of the decree.

The first contention is without foundation. Ex parte Phillips, 43 Nev. 368, 187 P. 311.

As to the other contention, we are precluded by the finding of the lower court.

In Ex parte Winston, 9 Nev. 71, a habeas corpus proceeding, the court said:

"Chancellor Kent says that 'no inquiry is to be made into the legality of any process, judgment or decree *** where the party is detained under the final decree or judgment of a competent court.' In Common-wealth v Lecky, Gibson, C.J., said: 'The habeas corpus is undoubtedly an immediate remedy for every illegal imprisonment. But no imprisonment is illegal where the process is a justification of the officer; and process whether by writ or warrant, is legal wherever it is not defective in the frame of it, and has issued in the ordinary course of justice from a court or magistrate having jurisdiction of the subject matter.' 1 Watts [Pa.], 67 , and authorities there cited.

A habeas corpus is not a writ of error. It cannot be used to authorize the exercise of appellate jurisdiction. On a habeas corpus the judgment of an inferior court cannot be disregarded. We can only look at the record to see whether a judgment exists, and have no power to say whether it is right or wrong. It is conclusively presumed to be right until reversed; and when the imprisonment is under process, valid on its face, it will be deemed prima facie legal, and if the petitioner fails to show a want of jurisdiction in the magistrate or court whence it emanated, his body must be remanded to custody."

In Phillips v. Welch, 12 Nev. 158, the court said:

"Petitioner was next brought before the chief justice upon a writ of habeas corpus, where a similar argument was again advanced, and the petitioner was remanded into custody upon the familiar principle, almost

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