Urban v. Brailey
124 N.W. 467
Neb.
1910
Check Treatment
Reese, C. J.

Tliis was an'application to the district court for Doug-' las county for a writ of habeas corpus, in which Ralph O. Urban sought his discharge from imprisonment. In the petition it Ayas alleged that the plaintiff AAras unlaAvfullly deprived of his liberty by the defendant, Brailey, in the county of Douglas, in that William Crocker pretended to hold an executiAre Avarrаnt for the arrest of plaintiff, and Avhich Avarrant charged him with being a fugitive from “the justice of the state of Colorado”; that he was not a fugitive from justice and Avas not guilty of any crime under the Iuavs of that state; that he Avas being held for the purpose of blackmail, the fact of the arrest growing out of a civil suit filed by him in the district court for Douglas county against C. F. Adams Company, the purpose oi the criminal process and arrest being to compel him to dismiss said action; that he had resided in Douglas county to the knoAVledge of said C. F. Adams Company for more than three months, and liad never secreted ‍​​​‌​​​​​​​‌​​​​‌​​‌‌‌​‌​‌​​​‌‌‌​​‌‌​​‌‌‌​​‌‌​‌‌‍himseíf from them or their agents; that he had, before the present arrest, been arrested at the instance of said .company and held in jail for more than three days in an attempt to compel him to pay the sum of $40 Avhich said company falsely claimed to be due it frоm him and Avhich he refused to pay, and he Avas thereafter released from custody; that he had not been guilty of forgery or other crime, and that he Avas Avrongfully and unlawfully held in jail by Crocker; that he Avas not charged with the commission of any crime by indictment or information filed against him; that he Avas in poor health and his removal to Colorado ivould endanger his life. The writ was issued to Edwin F. Brailey, the sheriff of Douglas county, and to which he made return, stating that on the 5th day of August, 1909, a demand for the extradition of plaintiff Avas made in proper form upon the governоr of this state by the governor of the state of Colorado, alleging that plaintiff Avas guilty of the crime of forgery, and that on *798the 10th clay of the same month the governor of this state issued his warrant authorizing the said Oroclcer, as the agent of the state of Colorado, to forthwith return plaintiff to said state, and said Brailey held plаintiff at the request of said agent for delivery under said warrant. No ‍​​​‌​​​​​​​‌​​​​‌​​‌‌‌​‌​‌​​​‌‌‌​​‌‌​​‌‌‌​​‌‌​‌‌‍copy of the warrant was attached tо or in any Avay made a part of the return. The cause was tried to the district court, the trial resulting in a finding that plаintiff was unlaAvfully and illegally restrained of his liberty, and he was ordered to be discharged. The defendant appeals.

A large volume of evidence is filed as a bill of exceptions, but as no motion for a new trial Avas filеd ‍​​​‌​​​​​​​‌​​​​‌​​‌‌‌​‌​‌​​​‌‌‌​​‌‌​​‌‌‌​​‌‌​‌‌‍in the district court we are not permitted to review the evidence submitted to the trial court (In re Van Sciever, 42 Neb. 772), and the only question before us is as to whether the petition states facts which should entitle plaintiff to the relief demandеd, or, if the petition be. held sufficient, whether the return contains facts which Avould justify his imprisonment. As to the latter, the statute requires that “if he (the person making the return) has the party in his custody or power, or .under restraint, he shall set forth at large the authority and the true and Avhole cause of such imprisonment and restraint,with a copy of the writ, ‍​​​‌​​​​​​​‌​​​​‌​​‌‌‌​‌​‌​​​‌‌‌​​‌‌​​‌‌‌​​‌‌​‌‌‍warrant, or other process, if any, upon Avkich the party is detained.” Criminal code, sec. 371. This portiоn of the statute was not complied with in the return, no copy of any process being set out or attaсhed. We find no such copy in the transcript, and, as we cannot consult the bill of exceptions, we arе not legally informed as to the efficacy of the warrant referred to in the return, if any existed, and therefore said return fails to show that defendant had any authority to deprive plaintiff of his liberty.

It must be conceded that the petition is not a skillfully drawn pleading, but as it was ‍​​​‌​​​​​​​‌​​​​‌​​‌‌‌​‌​‌​​​‌‌‌​​‌‌​​‌‌‌​​‌‌​‌‌‍not attacked in' the district court it must receive a liberal сonstruction here. Merrill v. Equitable Farm & Stock Improvement Co., 49 Neb. 198; Latenser v. Misner, 56 Neb. 340. The statutes of *799this state contain no direction in detail as to what shall be alleged in the petition. Sеction 353 of the criminal code provides, in substance, that where one is “unlawfully deprived of his or her liberty, and shall make application either by him or herself, or by any person on his or her behalf, to any one of the judges of the district court, or to any probate (county) judge, and does at the same time producе to such judge a copy of the commitment or cause of detention,” it shall be the duty of the judge to forthwith аllow the writ, etc. It is alleged that the plaintiff is unlawfully deprived of his liberty by the defendant, in that William Crocker pretеnds to hold an executive warrant, etc. It is not shown in the petition who William Crocker is, nor whom he represents. This is probably sufficient to justify the inference that defendant had no warrant at all. However, it is alleged in the return that Crocker was the agent of the state of Colorado, and that defendant held plaintiff at Crockеr’s request. This would furnish a sufficient excuse for not “producing” a copy of the “cause of detention” as rеquired by the section from which the above quotation is made. There are other averments in the petition herein above shown which need not be further set out here. Crocker made no appearanсe in the case, and the warrant was not set out in any of the pleadings. When attacked after judgment, the рetition, though informal, must be held sufficient.

It follows that the judgment of the district court must be affirmed, which is done.

Affirmed.

Sedgwick, J., not sitting. Barnes, J., concurs on the ground of the insufficient return to the writ.