State v. Decker
77 Neb. 33
Neb.
1906
Check Treatment
Ames, C.

One John F. Decker had been arrested and was detained by the sheriff of Lancaster county, and in the common jail of that county, upon a warrant issued by a justice of the peace, and charging him with having committed the offense of perjury while testifying as a witness upon the trial of a civil action in the district court for that county, Decker applied to the district court for, and obtained, a writ of habeas corpus under which to have inquiry made into the legality of his detention. The sheriff to whom the writ was directed made due return thereto, producing the person of the petitioner as therein commanded, and the court, after a hearing involving the taking of 166 pages of typewritten testimony, decided that there was no reasonable or probable cause for the accusation made in -the warrant, and on the 23d day of February, 1905, ordered that the prisoner be discharged from custody. The county attorney, who was present at the hearing, took exceptions to certain orders and rulings of the court during the progress thereof, and afterwards caused a bill of exceptions of the same to be made up and settled by the district judge *34in tbe manner prescribed by section 483 of tbe criminal code. On Jnne 8, 1905, before tbe late act regulating appeals to this court bad taken effect, the county attorney caused said bill of exceptions, together with a transcript of tbe proceedings in connection with which it was prepared, to be filed with tbe clerk of this court, as well as a petition in error in which it is recited that tbe county attorney and deputy county attorney “proceed under tbe provisions of section 515 of tbe criminal code,” and in which they assign certain errors as having been committed by tbe court during tbe progress of tbe hearing, and complain that tbe court was without jurisdiction to make or render an order of discharge of tbe prisoner. But tbe document, which is signed by the county attorney alone, and in bis official character only, does not expressly pray tbe judgment of tbe court upon its assignments or for a recaption of the accused.

It was decided by this court in In re Van Sciever, 42 Neb. 772, that a final order by a district court, or judge, made in a proceeding in habeas corpus, was reviewable in this court by proceedings in error, but that such a proceeding is a civil action and tbe procedure applicable to obtaining a review in this court is that provided by ¿be code. It follows that tbe suit in this court must be prosecuted by or on behalf of some one having an interest in tbe controversy, that is, tbe petitioner, or some person or persons claiming a right to bis custody, and that a bill of exceptions, if one is required, must be made and settled in tbe manner provided by statute for tbe making of such documents in civil actions. Sections 483 and 515 of tbe criminal code, to which alone tbe procedure in this case was attempted to be made conformable, are not applicable to such actions as tbe present, and this court is therefore without jurisdiction.

It is recommended that tbe petition in error be dismissed.

Oldham and Eppeeson, CC.., concur.

*35By the Court: For the reasons stated in the foregoing opinion, it is ordered that the petition in error be

Dismissed.