In re Pavey

• Decision Date: 02 January 1894
• Citation: 36 P. 878,52 Kan. 675
• Parties: In the matter of the Petition of ISAAC S. PAVEY for a Writ of Habeas Corpus
• Court: Kansas Supreme Court

36 P. 878

52 Kan. 675

In the matter of the Petition of ISAAC S. PAVEY for a Writ of Habeas Corpus

Supreme Court of Kansas

January 2, 1894

Original Proceeding in Habeas Corpus.

PETITION filed in this court on December 16, 1893. A copy thereof (omitting caption, subscription, and affidavit) is as follows:

"Comes now Isaac S. Pavey and shows to the court, first, that he is restrained of his liberty in the Douglas county jail, in the county of Douglas and state of Kansas, by L. W. Hindman, the sheriff of said county; second, that the cause or pretense of his restraint, according to the best of the knowledge and belief of this petitioner, is as follows:

"That on or about the --th day of September, A. D. 1893, one Ellen A. Pavey, the wife of this petitioner, filed her petition in the district court of Douglas county, Kansas, praying for a divorce from this petitioner as defendant, and prayed that this petitioner be restrained from interfering with the said Ellen A. Pavey or her property; that the probate judge of said county thereupon indorsed upon the said petition that the injunction as prayed for was allowed; that except the injunction granted by the probate judge of said county, as aforesaid, no injunction or restraining order has ever been granted in the said action, restraining or purporting to restrain this petitioner from interfering with said plaintiff or her property; that no bond for said injunction has ever been filed in the said action; that on the day of ------- 189--, an affidavit was filed by the said Ellen A. Pavey both of herself and her minor daughter, charging this petitioner with assaulting the said Ellen A. Pavey and the said minor daughter; that the said district court of Douglas county thereupon issued an order requiring this petitioner to appear upon the 14th day of December, A. D. 1893, and show cause why he should not be punished for contempt for violating said injunction; that the said court, on said 14th day of December, in the year aforesaid, did find this petitioner in contempt of said court, for having, as it was alleged, committed the said acts of violence, as hereinbefore stated; that the illegality of the restraint imposed upon this petitioner consists of --

"1. Imprisonment of this petitioner by the sheriff of Douglas county for disobeying an injunction wholly void for the reason that the probate judge had no authority to grant the same, and no bond having been filed as...