Williams v. Olson

• Decision Date: 26 March 1943
• Citation: 8 N.W.2d 830,143 Neb. 115
• Parties: WILLIAMS et al. v. OLSON, Warden.
• Court: Nebraska Supreme Court

8 N.W.2d 830

143 Neb. 115

WILLIAMS et al. v. OLSON, Warden.

Supreme Court of Nebraska

March 26, 1943

Syllabus by the Court.

1. Original jurisdiction to issue writs of habeas corpus is conferred upon this court by the Constitution.

2. This court is primarily an appellate tribunal for the purpose of reviewing matters tried in the lower courts and while it is given original jurisdiction in a few limited cases it will not ordinarily entertain original actions therein, when the county and district courts, or either, have concurrent jurisdiction, unless some good reason is shown why the application was not made to a county or district court.

Williams and Bennett, pro se, for petitioners.

Walter Johnson, Atty. Gen., and Rush C. Clarke, Asst. Atty. Gen for respondent.

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

WENKE Justice.

This matter is presented to the court upon the application of Leslie Williams and Joe Bennett for leave to file an original petition for a writ of habeas corpus.

In February of 1937 petitioners were sentenced to the Nebraska State Penitentiary from Seward county, Nebraska. On May 26, 1941 the petitioners filed their petition for a writ of habeas corpus in the district court for Lancaster county and upon application writ was issued and hearing thereon was had on June 23, 24, and 25. On July 25, 1941, judgment was entered against petitioners dismissing their petition. Appeal therefrom was taken to this court and on January 6, 1942 said appeal was dismissed and motion for rehearing thereon was overruled on April 4, 1942. Petition for writ of certiorari in the supreme court of the United States was denied on October 12, 1942. Subsequent thereto petitioners attempted to file an original action in the supreme court of the United States' which was denied on January 4, 1943.

The order of denial in the supreme court is as follows: "It does not appear that petitioners have exhausted their remedies under state law, especially in view of their failure to file an original application for habeas corpus in the Supreme Court of Nebraska as is permissible under state law (Nebraska Compiled Statutes 1929, section 27-204; In re White, 33 Neb. 812, 814 ), nor does it appear that the question presented here has been considered on the merits by the Supreme Court of Nebraska in any prior proceeding."

There is no question but what under section 2, art. V, of the Constitution of Nebraska and section 27-204, Comp.St.1929 that as stated in Re White, 33 Neb. 812, 51 N.W. 287, 288: "The original jurisdiction of this court to issue a writ of habeas corpus is conferred upon the court by the constitution." Likewise there is no question but that under the Constitution of Nebraska original jurisdiction, including habeas corpus, has generally been conferred upon the district courts of our state and that by legislative enactment jurisdiction in habeas corpus has been conferred upon the county courts in certain cases as provided in section 29-2801, Comp.St.1929. This jurisdiction of these several courts in matters of habeas corpus is concurrent. The legislature has provided for the procedure and disposition of such cases in the lower courts...