Marshall v. Geer, 18805
| Decision Date | 21 September 1959 |
| Docket Number | No. 18805,18805 |
| Parties | Edith Every MARSHALL, Plaintiff in Error, v. Edward O. GEER, Manager of Safety and Ex-Officio Sheriff of the City and County of Denver, Defendant in Error. |
| Court | Colorado Supreme Court |
Blair J. Lawther, George J. Francis, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Gerald Harrison, Asst. Atty. Gen., for defendant in error.
This is an action in habeas corpus in which the plaintiff in error, herein referred to as plaintiff, seeks to be released from the jail of the City and County of Denver wherein she was being held pursuant to a warrant issued by the Governor of the State of Colorado, pursuant to a requisition for extradition presented to the Governor of the State of Colorado by the Governor of the State of Oklahoma.
The plaintiff in her petition for a writ of habeas corpus alleges:
'* * * that the said arrest and restraining of petitioner is illegal, unlawful, and unwarranted; that she is not a fugitive from justice from another state; that no charge has been filed in any court of the state of Colorado against the said petitioner; that any alleged or pretended charge which may exist against your petitioner is without foundation, in fact or in law, and is insufficient to warrant or justify the illegal arrest, restraint and confinement of said petitioner.'
The trial court issued its order granting the writ and directed the defendants to make return thereto and present the plaintiff in court.
The defendants filed their return and stated:
'That a Writ of Error involving the same questions of law as set forth in the Petition herein was dismissed in the Supreme Court of the State of Colorado, upon the motion of the Attorney General of the State of Colorado, which Motion to Dismiss was based upon the case of Self v. People, 133 Colo. 524, 297 P.2d 887, and that all matters and things alleged in the within Petition are res judicata, as shown by the accompanying remittitur issued by the Supreme Court of the State of Colorado on May 13, 1958, marked respondents' Exhibit A and made a part of this return.'
The plaintiff filed her reply stating that (1) the defendants' return was not filed within the time provided by statute, and as a result thereof plaintiff has been denied due process of law; (2) that the issues herein have not previously been adjudicated.
Prior to trial the plaintiff filed a document titled 'Motion for Change of Venue,' which may have been intended as a motion for change of judge. This motion was denied, trial had and the court found that the questions presented had all been finally adjudicated as set forth in the return and ordered the writ of habeas corpus discharged and the plaintiff remanded to the custody of the defendants.
Plaintiff is here by writ of error seeking reversal and urges as reasons therefor: (1) the questions presented have not been adjudicated; (2) denial of plaintiff's 'motion for change of venue'; (3) refusal to make writ permanent because of defendants' alleged late filing of return, and (4) finding that the plaintiff was a fugitive from justice.
We take up and dispose of these alleged errors in the order set forth above.
1. The issues presented in this case are identical with the issues presented in Case No. 43488 in which a writ of habeas corpus was discharged and which case was brought to this court by writ of error, being Case N. 18320 of this court, and which writ of error was dismissed and remittitur issued to the trial court. The effect of said dismissal left the judgment of the district court in full force and effect and constituted a final adjudication of the matters therein presented.
In Seigler v. Canterbury, 136 Colo. 413, 318 P.2d 219, 220, a case of habeas corpus arising out of extradition proceedings, as in this case, this court said:
The case at bar falls squarely within the following general rule, stated in 39 C.J.S. Habeas Corpus § 105, p. 699:
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Stilley v. Tinsley, 19940
...by habeas corpus being civil in nature, the question of venue is governed by Colorado Rules of Civil Procedure. See Marshall v. Geer, 140 Colo. 305, 344 P.2d 440. In situations such as we have here we do not subscribe to the imposition of any limitations upon one seeking the writ, other tha......
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People ex rel. Wyse v. District Court In and For Twentieth Judicial Dist., 25643
...judicata applied to denial of discharge in habeas corpus proceedings. Trujillo v. People, Colo., 496 P.2d 1026 (1972); Marshall v. Geer, 140 Colo. 305, 344 P.2d 440 (1959). Even though we declared that the decisions in Trujillo and Marshall were predicated on Res judicata we have now conclu......
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...a return is inexcusable and has been condemned by this Court. See Nieto v. People, 160 Colo. 179, 415 P.2d 531 (1966); Marshall v. Geer, 140 Colo. 305, 344 P.2d 440 (1959). However, the failure to file a return does not invalidate the habeas corpus hearing or operate to discharge the petiti......
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People v. Calyer, 85SA152
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Interstate Rendition Under the Uniform Criminal Extradition Act
...note 106. 118. Gallegos v. Schooley, supra, note 116; Stilley v. Tinsley, 153 Colo. 66, 385 P.2d 677 (1963). 119. Marshall v. Geer, 140 Colo. 305, 344, P.2d 440 (1959). 120. Ferrell v. Vogt, 161 Colo. 549, 423 P.2d 844 (1967). 121. Bright v. Foster, 150 Colo. 559, 374 P.2d 865 (1962). 122. ......