In re The Application of L. D. Roberts for A Writ of Habeas Corpus

• Decision Date: 01 June 1896
• Docket Number: 385
• Citation: 45 P. 942,4 Kan.App. 292
• Parties: In the matter of the Application of L. D. ROBERTS for a Writ of Habeas Corpus
• Court: Kansas Court of Appeals

45 P. 942

4 Kan.App. 292

In the matter of the Application of L. D. ROBERTS for a Writ of Habeas Corpus

No. 385

Court of Appeals of Kansas, Southern Department, Eastern Division

June 1, 1896

Opinion Filed July 13, 1896.

MEMORANDUM.-- Original application by L. D. Roberts for a writ of habeas corpus. Granted.

Humphrey & Hudson, for petitioner.

J. I Sheppard, for respondent.

COLE J. All the Judges concurring.

OPINION

COLE J.:

On the 17th day of April, 1896, L. D. Roberts made application to Hon. W. A. JOHNSON, presiding judge of this court, for the issuance of a writ of habeas corpus, and the hearing of the matter was continued until the 2d day of June, and was heard before the court in regular session at Fort Scott.

The petitioner alleges that he is unlawfully deprived of his liberty by Allen Wheeler, sheriff of Bourbon county, and the cause of his said restraint he alleges to be, that about February 28, 1896, one Fletcher Oliver filed in the justice's court of C. F. Coryell a bill of particulars demanding judgment against said Roberts for $ 300, and that a judgment was afterward rendered for said amount, together with costs taxed at $ 3.50, and that, after the rendition of the judgment, the said Fletcher Oliver filed with the justice of the peace his affidavit, setting forth the fact that he had obtained judgment against said Roberts, and alleging that the said Roberts had property which he fraudulently concealed, and that he had. converted a part of his property into money for the purpose of defrauding his creditors, and that he fraudulently contracted the debt upon which the judgment was obtained, and as a statement of facts to support such allegations stated in said affidavit that Roberts had told him (Oliver) that he had so disposed of his property that Oliver could get none of it; that he had money, but would not pay Oliver; that thereupon the said justice of the peace issued an order of arrest for said Roberts, directed to B. F. Waters, constable of the city of Fort Scott, and commanding him, in case the amount of the judgment in question should not be paid to him or property of the defendant be found within his county whereon to levy execution sufficient to satisfy the same, to arrest the said defendant, L. D. Roberts, and deliver him to the sheriff of Bourbon county, to be by him committed to the jail of said county and kept in custody until discharged by law; that upon said affidavit and order defendant was arrested by said constable and delivered over to said sheriff, who now deprives him of his liberty.

The answer of the sheriff to the writ admitted the arrest of said Roberts in the manner stated in the petition, and alleged that after the arrest said Roberts entered into a recognizance to remain within prison bounds until discharged by law; that afterward the sureties upon said bond presented to him a copy of said bond, together with the person of L. D. Roberts, and demanded that he take said Roberts into custody, and release said bond; and that thereupon the said sheriff took him into custody but refused to release said bond. The sheriff further alleged in his answer that he was thereupon served with a writ of habeas corpus issued by the probate judge of Bourbon county, who afterward remanded said Roberts into his custody, and that afterward the said L. D. Roberts presented another prison-limit bond, and that he again afterward took him into nominal custody at the request of said bondsmen. He also sets forth in his answer that neither said Roberts nor any one for him has paid the amount of the said judgment stated in the order of arrest.

There seems to be no real dispute as to the facts in this case. As stated in the petition, Oliver brought a suit against Roberts in justice's court, and judgment was rendered therein against Roberts for $ 300. No affidavit for an order of arrest was made prior to the rendition of the judgment, and no hearing was had upon any facts alleged to constitute a fraud upon the part of Roberts, and no finding was made by the justice of the peace, save and except the entry of a money judgment. After judgment had been rendered, the plaintiff, Oliver, filed an affidavit in substance as stated in the petition in this case, and upon the filing of said affidavit, and without any hearing as to the question of fraud, the order of arrest was issued by the justice, and thereunder the said Roberts was committed to the custody of the sheriff. These proceedings were had under paragraphs 4872 and 4873 of the General Statutes of 1889, which are as follows:

"4872. On judgment against the defendant, in any civil action before a justice of the peace, when the defendant is in the custody of the officers, as hereinbefore provided, or if, after judgment against him, there is filed in the office of such justice an affidavit of the plaintiff, his authorized agent or attorney, made before any person competent to administer an oath, stating the amount of judgment remaining unpaid, and one or more of the particulars mentioned in section 18, said justice of the peace shall, unless otherwise ordered by the plaintiff, issue an execution, and accompany the same with an order for the arrest...