In re The Application of William Bolman for A Writ of Habeas Corpus, 29,877

• Court: United States State Supreme Court of Kansas
• Writing for the Court: HARVEY, J.:
• Citation: 131 Kan. 593,292 P. 790
• Parties: In the Matter of the Application of WILLIAM BOLMAN for a Writ of Habeas Corpus
• Docket Number: 29,877
• Decision Date: 08 November 1930

292 P. 790

131 Kan. 593

In the Matter of the Application of WILLIAM BOLMAN for a Writ of Habeas Corpus

No. 29,877

Supreme Court of Kansas

November 8, 1930

Decided July, 1930.

Original proceeding in habeas corpus.

Writ denied.

SYLLABUS

SYLLABUS BY THE COURT.

1. HABEAS CORPUS--Custody Under Void Order. Habeas corpus will lie to inquire into the legality of one in custody under the order of a lower court when the question raised is the jurisdiction of the court to issue the order.

2. BASTARDY--Venue of Proceedings. A prosecution under our statutes providing for the maintenance and support of illegitimate children may be brought in any county or before any justice of the peace of the state, irrespective of the place of residence of the complaining witness, or whether the defendant can be apprehended in that county.

Clyde L. Short, Charles L. Hunt and Frank C. Baldwin, all of Concordia, for the petitioner.

Ralph H. Noah, county attorney, for the respondent.

OPINION

HARVEY, J.:

This is an original proceeding in habeas corpus. The application for the writ alleged, in substance, that the petitioner is a resident of Cloud county, Kansas; that he is unlawfully deprived of his liberty by Clyde C. Wilson, sheriff of Mitchell county, [131 Kan. 594] Kansas, and held in the county jail of that county on a warrant issued out of the court of W. H. Young, a justice of the peace of Mitchell county, which warrant was based upon a complaint sworn to by a resident of Cloud county, Kansas, charging the petitioner with bastardy; that the relatrix, in swearing to the complaint before a justice of the peace of Mitchell county, instead of some justice of the peace of the county of the residence of herself and of the petitioner, did so in conspiracy with others to deprive the petitioner of the right of a trial in the county where the parties resided, which county, or the courts thereof, had jurisdiction of the subject matter, as well as of the parties; that it is not claimed that any offense was ever committed in Mitchell county, or that the child was, or ever would be, a public charge of any county other than where the parties reside, and was for the purpose, among other things, of depriving the petitioner of a trial in the county of the residence of both parties; that by reason of these facts the court out of which the warrant was issued had no jurisdiction.

The hearing in this court was upon the application for the writ. Notwithstanding the fact that no writ, either peremptory or in the alternative, was issued, "The State of Kansas" has filed a "motion to quash alternative writ," in which it was alleged that the justice of the peace of Mitchell county had jurisdiction over the petitioner and of the subject matter of the proceeding, and that the relatrix in that proceeding was, and is, a resident of Mitchell county since a date prior to the issuance of the warrant in that proceeding; and in support of the allegations of residence affidavits were filed that she became a resident of Mitchell county on the day before the warrant was issued. This motion to quash cannot be considered, for the reason that no alternative writ was issued, and for the further reason that "The State of Kansas" is not a party to the proceeding in this court. In fact, it is a party to the proceeding in the justice court in the sense only that it has loaned its name and the use of its county attorney for the purpose of conducting the proceeding. The sheriff, Clyde C. Wilson, has filed a "return . . . to the writ of habeas corpus . . ." which sets out a [292 P. 791] copy of the warrant issued by the justice of the peace and avers that in pursuance thereof he had arrested the petitioner and taken him into his custody before the justice of the peace court from which the warrant was issued, which court fixed the bond at $ 5,000, which bond was not given, and made as a part of the return the affidavits filed in this court by the relatrix [131 Kan. 595] in the bastardy proceeding that she was a resident of Mitchell county, and had been since September 1, 1930, on which date she moved to that county for the purpose of making it her residence, and that she did not intend to return to Cloud county. This instrument cannot be treated as a return to the writ for the reason that no writ had been issued, but the court will treat it as an informal answer to the application for the writ. In effect it admits the pertinent allegations of the application for the writ except as to the residence of the relatrix in the bastardy proceeding at the time she filed the affidavit before the justice of the peace of Mitchell county. So treated, it presents an issue to the question of the place of residence of the relatrix at that time.

Turning to the legal questions. Respondent contends that habeas corpus will not lie to inquire into the questions sought to be raised by the petitioner for the reason that it is a question which could have been raised in the progress of the trial in the court below and presented to this court on appeal, and that habeas corpus cannot be used as a substitute for appeal, citing R. S. 60-2213 and cases cited thereunder. It is true that habeas corpus is not a substitute for appeal, and where questions sought to be raised by habeas corpus relate only to irregularities, or even prejudicial error, in the conduct or proceeding of an action, such irregularities or errors must be brought to the attention of this court by appeal; but where the contention is made that the court, in conformity to the orders of which the petitioner is held in custody, is without jurisdiction to make any order in a particular proceeding, the remedy by habeas corpus is not only available, but is the proper remedy. In 29 C. J. it is said:

"A judgment or order under which the petitioner is held must be void for want of jurisdiction, and not merely erroneous and voidable, . . . Habeas corpus lies only to determine the question of the jurisdiction and lawful power of the custodian to hold petitioner in custody; it is not available as a substitute for an appeal or writ of error or other revisory remedy for the correction of errors either of law or fact, at least not in the absence of exceptional circumstances." (pp. 24, 25.)

See, also, 12 R. C. L. 1185; 9 Enc. Pl. & Pr. 1045.

Here the petitioner contends that the court out of which the warrant was issued, by virtue of which he was taken into custody, was without jurisdiction to entertain the complaint of the relatrix or...