Neudeck, Application of, 34381

• Decision Date: 16 May 1958
• Docket Number: No. 34381,34381
• Citation: 166 Neb. 649,90 N.W.2d 254
• Parties: , Blue Sky L. Rep. P 70,384 Matter of the Application of Ralph NEUDECK for a Writ of Habeas Corpus. Ralph NEUDECK, Appellee, v. Walter G. BUETTOW, Appellant.
• Court: Nebraska Supreme Court

Page 254

90 N.W.2d 254

166 Neb. 649, Blue Sky L. Rep. P 70,384

Matter of the Application of Ralph NEUDECK for a Writ of Habeas Corpus.

Ralph NEUDECK, Appellee, v. Walter G. BUETTOW, Appellant.

No. 34381.

Supreme Court of Nebraska.

May 16, 1958.

Syllabus by the Court

1. The time for filing a motion for new trial begins to run from the time the decision is rendered. With certain exceptions, such requirement is mandatory.

2. A motion for a new trial which is not filed within the time specified by statute is a nullity and of no force and effect.

3. Habeas corpus, under statutes like our own, is a special proceeding, civil in character, providing a summary remedy open to persons illegally detained.

4. The sufficiency of evidence adduced at a preliminary hearing to hold an accused to answer for a crime with which he is charged may be raised and tried in habeas corpus proceedings.

5. In a habeas corpus proceeding instituted for the purpose of testing the sufficiency of evidence taken at a preliminary examination to require a person to be tried on a criminal charge, the court will not weigh the evidence but will only inquire as to the existence of evidence to sustain the charge.

6. Where the testimony shows that an offense has been committed and there is testimony tending to show that the accused committed the offense, the court, on a writ of habeas corpus, will not discharge him.

7. Evidence that would justify a committing magistrate in finding that probable cause existed for the detention of a defendant need not necessarily be sufficient to sustain a verdict of guilty when he is placed on trial.

8. It is not within the province of this court to deal with the policy of the law, nor to attempt to extend it, even though an extension should be considered desirable; but its duty is to go so far only as to interpret the law as it stands, and determine what the Legislature, at the time of the enactment, intended by it.

9. In the absence of a statute specifically so providing the performance of a single act, or even a number of isolated acts, pertaining to a particular business or occupation does not constitute engaging in, or carrying on, such business or occupation within the meaning of a law imposing a license or tax thereon unless an intent to engage in the business is clearly apparent, although where a statute so intends a single transaction may constitute the carrying on of the business or occupation licensed or taxed.

Eugene C. McFadden, County Attorney, Norfolk, C. S. Beck, Atty. Gen., Leslie Boslaugh, Sp. Asst. Atty. Gen., for appellant.

Daniel D. Jewell, Norfolk, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

WENKE, Justice.

This is an appeal from the district court for Madison County. It involves a habeas corpus action brought by Ralph Neudeck as relator against Walter G. Buettow, sheriff of Madison County, as respondent. Its purpose is to obtain the discharge of relator from the custody of the respondent on the ground that he is being unlawfully deprived of his liberty. The trial court ordered his discharge. Respondent appealed from that decision on November 27, 1957. We shall herein refer to the parties as the relator and respondent.

The respondent also endeavored to appeal from the order overruling his motion for a new trial. See section 25-1912, R.R.S.1943. This, however, contemplates that an application for a new trial has been made in accordance with the provisions of section 25-1143, R.R.S.1943. The transcript shows a hearing was had on relator's application on October 4, 1957. At the conclusion of this hearing the trial court 'took said cause under advisement until the 30th day of October, 1957.' Thereafter, on October 30, 1957, the court rendered its decision discharging the relator. However, in the meantime, on October 28, 1957, the respondent filed a motion for new trial which the trial court purported to overrule on November 15, 1957.

The time for filing a motion for new trial begins to run from the time the decision is rendered. With certain exceptions not here controlling such requirement is mandatory. See Molczyk v. Molczyk, 154 Neb. 163, 47 N.W.2d 405; Frenchman-Cambridge Irr. Dist. v. Ferguson, 154 Neb. 20, 46 N.W.2d 692, 693; Klause v. Nebraska State Board of Agriculture, 150 Neb. 466, 35 N.W.2d 104; section 25-1143, R.R.S.1943. As stated in Frenchman-Cambridge Irr. Dist. v. Ferguson, supra: 'A motion for a new trial which is not filed within the time specified by statute is a nullity and of no force and effect.' That is the situation here.

'Habeas corpus, under statutes like our own, is a special proceeding, civil in character, providing a summary remedy open to persons illegally detained.' Tail v. Olson, 144 Neb. 820, 14 N.W.2d 840, 841. See, also, Selicow v. Dunn, 100 Neb. 615, 160 N.W. 991. Section 29-2823, R.R.S.1943, provides the appeal in habeas corpus proceedings shall be the same as in civil cases. See Selicow v. Dunn, supra; Tail v. Olson, supra.

However, the appeal being within 1 month from the decision rendered October 30, 1957, it is here for our consideration. See section 25-1912, R.R.S.1943. Since respondent failed to file a valid motion for new trial errors of law occurring at the trial may not be considered by this court. See, Oertle v. Oertle, 146 Neb. 746, 21 N.W.2d 447; Gillard v. Clark, 105 Neb. 84, 179 N.W. 396, 397. As stated in Gillard v. Clark, supra: 'We are therefore not at liberty to review any of the questions which were required to be presented to the district court by motion for a new trial. Tait v. Reid, 91 Neb. 235, 136 N.W. 39' As stated in Krepcik v. Interstate Transit Lines, 151 Neb. 663, 38 N.W.2d 533, 536: 'The right of the Legislature to authorize an appeal within a time limited from the rendition of the judgment and a trial in this court de novo upon the entire record made, including the evidence taken in the district court, without the filing of a motion for a new trial, has been sustained and the procedure enforced.' See, also, Birdsley v. Kelley, 159 Neb. 74, 65 N.W.2d 328, 329.

In view of the foregoing the following from Birdsley v. Kelley, supra, is here applicable: 'In the light of these rules the district court examined the evidence adduced at the preliminary hearing and came to the conclusion and adjudicated that this evidence was insufficient upon which to hold appellee to the district court for trial. It is from this conclusion and adjudication that the appeal herein is taken. This requires an examination and review of the evidence.'

Relator was charged in two counts with violation of the Nebraska 'Blue-Sky Law.' The county court of Madison County, wherein the charges were filed, bound the relator over to the district court for Madison County to stand trial on each of the two charges made against him. Section 29-506, R.R.S.1943, provides, insofar as here material, that: 'If upon the whole examination * * * it shall appear that an offense has been committed and there is probable cause to believe that the person charged has committed the offense, the accused shall be committed to the jail of the county in which the same is to be tried, there to remain until he is discharged by due course of law * * *.' The purpose of this action is to test the sufficiency of the evidence adduced at the preliminary hearing conducted in the county court of Madison County pursuant to which relator was held for trial in the district court.

'The sufficiency of evidence adduced at a preliminary hearing to hold an accused to answer for a crime with which he is charged may be reised and tried in habeas corpus proceedings.' State ex rel. Pribyl v. Frank, 165 Neb. 239, 85 N.W.2d 328. See, also, Hoffman v. State, 164 Neb. 679, 83 N.W.2d 357; Cotner v. Solomon, 163 Neb. 619, 80 N.W.2d 587; Birdsley v. Kelley, supra.

'In a habeas corpus proceeding instituted for the purpose of testing the sufficiency of evidence taken at a preliminary examination to require a person to be tried on a criminal charge, the court will not weigh the evidence but will only inquire as to the existence of evidence to sustain the charge.' Cotner v. Solomon, supra [163 Neb. 619, 80 N.W.2d 590]. See, also, Birdsley v. Kelley, supra.

'Where the testimony shows that an offense has been committed and there is testimony tending to show that the accused committed the offense, the court, on a writ of habeas corpus, will not discharge him.' State ex rel. Flippin v. Sievers, 102 Neb. 611, 168 N.W. 99. See, also, Cotner v. Solomon, supra.

'Evidence that would justify a committing magistrate in finding that probable cause existed for the detention of a defendant need not necessarily be sufficient to sustain a verdict of guilty when he is placed on trial; * * *.' Rhea v. State, 61 Neb. 15, 84 N.W. 414, 415. The court therein went on to say: 'It is further urged, however, that the evidence discloses that for his compensation Rhea was to receive a certain per cent. of the money so collected by him; that he was, therefore, a part owner of the property, and could not be guilty of embezzlement of that which belonged to him. Whether the point would be a good defense upon the trial we will not stop to inquire. Sufficient to say that there was evidence enough to make out a case of probable cause.'

Count I charged that relator did: 'Willfully and feloniously offer for sale and sell to Walter Ries a certain security to-wit: A preorganization subscription in a corporation to be known as Brucenite Corporation, when the said security was not authorized for sale or exchange by the Department of Banking of the State of Nebraska.'

The evidence adduced at the preliminary hearing shows that on March 12, 1956, in Norfolk, Madison County, Nebraska, relator and others, sold to Walter Ries, a rancher and farmer of Atkinson, Nebraska, 20,000 shares of capital stock in the Brucenite Corporation for the sum of $1,000, which corporation was to be...