In re Walker

CourtSupreme Court of Nebraska
Writing for the CourtHOLCOMB
Citation61 Neb. 803,86 N.W. 510
PartiesIN RE WALKER.
Decision Date22 May 1901

61 Neb. 803
86 N.W. 510

IN RE WALKER.

Supreme Court of Nebraska.

May 22, 1901.



Syllabus by the Court.

1. A prisoner held under a process in due form issued upon a judgment cannot obtain his discharge by habeas corpus unless the judgment is void, and not merely voidable.

2. A suit against the putative father for the maintenance of his illegitimate child is essentially a civil action, accompanied by the extraordinary remedy of arrest and imprisonment for the purpose of enforcing a judgment rendered in the case.

3. The bastardy act is an exercise of the police power of the state, the object of which is to require the putative father, in compliance with his moral obligation, to furnish support for his child, and indemnify the public against liability for its care and maintenance.

4. A justice of the peace obtains jurisdiction over a defendant, under the act in question, by the filing of the statutory complaint, duly verified, the issuance of a warrant for the arrest of the defendant, and its execution; the execution of the process serving the same office as the service of a summons in an ordinary civil action.

5. In a proceeding under the bastardy act, the district court acquires jurisdiction by the filing of the transcript of the proceedings had before the justice of the peace, based on a proper complaint, arrest of the accused, and an order requiring him to appear before the district court for trial. Altschuler v. Algaza, 21 N. W. 401, 16 Neb. 631.

6. The district court, having acquired jurisdiction by the filing of a transcription of the proceedings had before a justice of the peace, is empowered to try the case and render judgment, even though the defendant be not personally present.

7. Where a defendant fails to appear in the district court in pursuance to an order made at the preliminary inquiry had before a justice of the peace, and enters no plea to the complaint, a trial may be had to the court without the aid of a jury provided for by section 3, c. 37, Comp. St. 1899, to try the issue on a plea of not guilty.

8. The failure to impanel a jury to try the issue would not go to the jurisdiction of the court, but, at most, render the judgment erroneous, the correction of which could not be had by proceedings in habeas corpus.

9. A defendant brought to this state on requisition in good faith, and not as a pretext or device to serve some ulterior purpose, may be prosecuted on any other charge of violating the laws of the state, or for a civil liability or obligation resting upon him, and is not exempt from service of process until a reasonable time elapses in which to return to the state from which he was brought under the requisition.

10. A defendant brought into the jurisdiction of the courts of this state on requisition from another state is not entitled to immunity from service of process, civil or criminal, until a reasonable time elapses in which to withdraw from the jurisdiction, such as is ordinarily extended to suitors and witnesses whose attendance at court is voluntary.


In the matter of the application of John Walker for a writ of habeas corpus. Denied.

[86 N.W. 510]

Mathew Gering, for plaintiff.

Jesse L. Root, C. S. Polk, and C. F. Tefft, for defendant.


HOLCOMB, J.

The petitioner, John Walker, brings an original action in this court for a writ of habeas corpus, alleging in his petition that he is unlawfully restrained of his liberty by the sheriff of Cass county, in whose custody he is held by virtue of a capias writ issued out of the district court of said county. It appears from the record that the writ was issued on a judgment of filiation rendered in an action pending in said court against the petitioner, in which said judgment it was ordered by the court that the defendant (the petitioner) pay to the plaintiff in the action the sum of $138.75 for the care and expense connected with the birth, care, and death of a bastard child (he being adjudged to be the reputed father), and the costs of the action, in default of which payment, or the securing of the payment thereof, the defendant should be committed to the jail of the county until the judgment be

[86 N.W. 511]

complied with. The facts in the case are stipulated by the parties. There are but two questions of controlling importance necessary to be considered in a proper determination of the controversy, which will appear in the further discussion of the subject. In September, 1900, a complaint was entered by Lillie Parker, an unmarried woman, before a justice of the peace of Cass county, under the provisions of chapter 37 of the Compiled Statutes of 1899, charging the defendant with being the father of her illegitimate child, of which she had been delivered a short time previous. A warrant was issued, and the defendant arrested and brought before the justice; and upon defendant's application a continuance of the hearing contemplated by the statute was had, and he entered into a recognizance to appear at the time to which the hearing was continued. Upon a hearing had before the justice of the peace as to the truth of the charge made against the defendant, at which he was present, evidence was submitted and reduced to writing as required by statute, upon consideration of which it was found that the complaint was established; and the defendant was required to enter into a recognizance in the sum of $500 for his appearance at the next term of the district court to answer the accusation made against him and abide the order of the court. The defendant was placed in the custody of a constable for the purpose of securing the recognizance required, and, neglecting to give the same, a mittimus was issued, authorizing his commitment to the jail of the county. Before execution of the mittimus the defendant escaped from the custody of the constable, and fled to the state of Iowa. A transcript of the complaint and all proceedings had before the justice of the peace was duly made, certified, and filed in the office of the clerk of the district court of Cass county on the first day of the next term thereof held after the preliminary hearing had before the justice of the peace. The defendant failing to appear at said term of the district court, his default was duly taken and entered, and, the case coming on for hearing, evidence was submitted to the court without the intervention of a jury, upon consideration whereof it was by the court adjudged that the defendant was the reputed father of the bastard child of the plaintiff, and liable for its support and maintenance, and awarding judgment accordingly as herein first mentioned. The defendant was afterwards arrested on a capias issued upon the judgment, and held in custody, because of his failure and default in complying with the judgment so rendered.

It is contended by counsel for the petitioner, and argued in his brief, that the judgment which is the foundation for the process directing the arrest and imprisonment of the defendant is void for want of jurisdiction over his person of the court rendering the judgment; the precise claim being that because the defendant was not personally present in court and had entered into no recognizance for his presence thereat, having fled from the custody of the officer detaining him under the mittimus, jurisdiction by the district court was never acquired over his person. We are therefore to inquire, in what manner does the district court obtain jurisdiction in a proceeding of the character under consideration? Is it by filing a transcript of the complaint and proceedings had before a justice of the peace,--who, it must be conceded, in this case was empowered to act, and had the jurisdiction which was exercised at the preliminary inquiry,--or must the personal presence of the defendant, voluntarily or involuntarily, be had in the district court before it is authorized to render judgment in the case?

Preliminary to what follows, we, perhaps, should here note that habeas corpus proceedings cannot be resorted to for the purpose of correcting errors of the trial court rendering the judgment which is challenged in such proceedings. If the prisoner is held under a process in due form issued upon a judgment, he cannot obtain his discharge by habeas corpus unless the judgment is void, and not merely voidable. Freem. Judgm. § 619, citing Ex parte Marx, 86 Va. 40, 9 S. E. 475;In re Coy, 127 U. S. 731-757, 8 Sup. Ct. 1263, 32 L. Ed. 274; Ex parte Watkins, 3 Pet. 191-202, 7 L. Ed. 650. The bastardy proceeding must also be regarded as essentially a civil action, accompanied by the extraordinary remedy of arrest and imprisonment for the purpose of enforcing a judgment rendered in the case. Ex parte Cottrel, 13 Neb. 193, 13 N. W. 174;Altschuler v. Algaza, 16 Neb. 631, 21 N. W. 401;Strickler v. Grass, 32 Neb. 811, 49 N. W. 804. While in its character the proceeding is a civil action under the statute, the act is, properly speaking, the exercise of the police power of the state, the object of which is to require the putative father, in compliance with his moral obligation, to furnish support for his child, and indemnify the public against liability for its care and keeping; “to compel him to assist in the maintenance of the fruit of his immoral act,” and to prevent the child from becoming a county charge. Stoppert v. Nierle, 45 Neb. 105-117, 63 N. W. 382, and cases therein cited.

It is practically conceded that the justice of the peace before whom the preliminary proceedings were had in the case had...

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26 practice notes
  • Jackson v. Olson, No. 32012.
    • United States
    • Supreme Court of Nebraska
    • March 8, 1946
    ...Neb. 310, 75 N.W. 828;In re Fanton, 55 Neb. 703, 76 N.W. 447,70 Am.St.Rep. 418;McCarty v. Hopkins, 61 Neb. 550, 85 N.W. 540;In re Walker, 61 Neb. 803, 86 N.W. 510;Jahnke v. State, 68 Neb. 154, 94 N.W. 158,104 N.W. 154;Keller v. Davis, 69 Neb. 494, 95 N.W. 1028;Michaelson v. Beemer, 72 Neb. ......
  • Jackson v. Olson, 32012.
    • United States
    • Supreme Court of Nebraska
    • March 8, 1946
    ...310, 75 N.W. 828; In re Fanton, 55 Neb. 703, 76 N.W. 447, 70 Am.St.Rep. 418; McCarty v. Hopkins, 61 Neb. 550, 85 N.W. 540; In re Walker, 61 Neb. 803, 86 N.W. 510; Jahnke v. State, 68 Neb. 154, 94 N.W. 158, 104 N.W. 154; Keller v. Davis, 69 Neb. 494, 95 N.W. 1028; Michaelson v. Beemer, 72 Ne......
  • Thomas v. Blackwell, Case Number: 23644
    • United States
    • Supreme Court of Oklahoma
    • June 4, 1935
    ...(1918) 161 C. C. A. 281, 249 Fed. 273; Byler v. Jones (1889) 79 Mo. 261; Morris v. Dowell (1918) (Mo. App.) 205 S.W. 229; Re Walker (1901) 61 Neb. 803, 86 N.W. 510, 12 Am. Crim. Rep. 343; Rutledge v. Krauss (1906) 73 N.J.L. 397, 63 A. 988; Adriance v. Lagrave (1874) 59 N.Y. 110, 17 Am. Rep.......
  • In re John A. Flack, 18,456
    • United States
    • United States State Supreme Court of Kansas
    • January 11, 1913
    ...a charge of violating its laws. The reason for extending the rule of immunity is wanting in his case." (In re Application of Walker, 61 Neb. 803, 816, 86 N.W. 510.) In the case of The State v. McNaspy, 58 Kan. 691, 50 P. 895, a fugitive from justice was found in another state by a pursuing ......
  • Request a trial to view additional results
30 cases
  • Jackson v. Olson, No. 32012.
    • United States
    • Supreme Court of Nebraska
    • March 8, 1946
    ...Neb. 310, 75 N.W. 828;In re Fanton, 55 Neb. 703, 76 N.W. 447,70 Am.St.Rep. 418;McCarty v. Hopkins, 61 Neb. 550, 85 N.W. 540;In re Walker, 61 Neb. 803, 86 N.W. 510;Jahnke v. State, 68 Neb. 154, 94 N.W. 158,104 N.W. 154;Keller v. Davis, 69 Neb. 494, 95 N.W. 1028;Michaelson v. Beemer, 72 Neb. ......
  • Jackson v. Olson, 32012.
    • United States
    • Supreme Court of Nebraska
    • March 8, 1946
    ...310, 75 N.W. 828; In re Fanton, 55 Neb. 703, 76 N.W. 447, 70 Am.St.Rep. 418; McCarty v. Hopkins, 61 Neb. 550, 85 N.W. 540; In re Walker, 61 Neb. 803, 86 N.W. 510; Jahnke v. State, 68 Neb. 154, 94 N.W. 158, 104 N.W. 154; Keller v. Davis, 69 Neb. 494, 95 N.W. 1028; Michaelson v. Beemer, 72 Ne......
  • Thomas v. Blackwell, Case Number: 23644
    • United States
    • Supreme Court of Oklahoma
    • June 4, 1935
    ...(1918) 161 C. C. A. 281, 249 Fed. 273; Byler v. Jones (1889) 79 Mo. 261; Morris v. Dowell (1918) (Mo. App.) 205 S.W. 229; Re Walker (1901) 61 Neb. 803, 86 N.W. 510, 12 Am. Crim. Rep. 343; Rutledge v. Krauss (1906) 73 N.J.L. 397, 63 A. 988; Adriance v. Lagrave (1874) 59 N.Y. 110, 17 Am. Rep.......
  • In re John A. Flack, 18,456
    • United States
    • United States State Supreme Court of Kansas
    • January 11, 1913
    ...a charge of violating its laws. The reason for extending the rule of immunity is wanting in his case." (In re Application of Walker, 61 Neb. 803, 816, 86 N.W. 510.) In the case of The State v. McNaspy, 58 Kan. 691, 50 P. 895, a fugitive from justice was found in another state by a pursuing ......
  • Request a trial to view additional results

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