North v. Dorrance (Ex part Maher), No. 31659.

• Court: Supreme Court of Nebraska
• Writing for the Court: WENKE
• Citation: 13 N.W.2d 653,144 Neb. 484
• Parties: Ex parte MAHER. NORTH v. DORRANCE, Sheriff, et al.
• Decision Date: 17 March 1944
• Docket Number: No. 31659.

144 Neb. 484
13 N.W.2d 653

Ex parte MAHER.
NORTH
v.
DORRANCE, Sheriff, et al.

No. 31659.

Supreme Court of Nebraska.

March 17, 1944.

Appeal from District Court, Douglas County; Day, Judge.

Proceeding in the matter of the application of William Maher for a writ of habeas corpus, by Grenville P. North, as petitioner, against William H. Dorrance, Sheriff of Douglas County, Neb., and Emil Stahmer, keeper of the county jail of Douglas county, Neb., to obtain applicant's discharge. From an order denying the application, the applicant appeals.

Affirmed.

Syllabus by the Court.

1. Habeas corpus is a collateral, not a direct, proceeding when regarded as a means of attack upon a judgment sentencing a defendant. It cannot be used as a substitute for a writ of error.

[13 N.W.2d 654]

2. The writ of habeas corpus is a proper remedy where one is deprived of his liberty by reason of a void judgment.

Grenville P. North, of Omaha, for appellant.

Kelso Morgan, Co. Atty., and Clinton Brome, Deputy Co. Atty., both of Omaha, for appellee.

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

WENKE, Justice.

William Maher, as applicant, brought this action in the district court for Douglas county by Grenville P. North, as petitioner, and against William H. Dorrance, sheriff of Douglas county, and Emil Stahmer, keeper of the county jail of Douglas county, as respondents, to obtain his discharge by habeas corpus. From an order denying the application and overruling of the motions for new trial of the applicant and petitioner, the applicant, William Maher, has appealed. Maher will be referred to as the applicant.

The action was heard in the district court upon the applicant's amended petition. The matters therein set forth, by which the applicant claims he is being unlawfully restrained and imprisoned, arise out of the defendant's conviction and sentence for arson in the fourth degree in the case of State v. Maher. That case has been brought to this court by the applicant by error proceedings and is No. 31647, 13 N.W.2d 641. A careful study of the allegations of the amended petition and the errors assigned in applicant's brief show that all of the questions therein raised were also raised by the applicant's petition in error and brief in case No. 31647, Maher v. State, and therein determined.

“‘Habeas corpus is a collateral, not a direct, proceeding when regarded as a means of attack upon a judgment sentencing a defendant.’ Hulbert v. Fenton, ...