" Urban v. Brailey, 85 Neb. 796, 798-99, 124 N.W. 467. "It has been held that the proper method of attacking the petition is by motion to quash the writ, and that insufficiency in the petition is waived unless that remedy be resorted to. ( McGlennan v. Margowski, 90 Ind. 150.)" Nebraska Children's Home Society v. State, 57 Neb. 765, 769, 78 N.W. 267. See also Chase v. State, 93 Fla. 963, 113 So. 103; State ex rel. Chase v. Calvird, 324 Mo. 429, 24 S.W.2d 111; Stuart v. State, 36 Ariz. 28, 282 P. 276; State ex rel. Davis v. Hardie, 108 Fla. 133, 146 So. 97; Ex parte Tipton, 83 Cal.App. 742, 257 P. 445; Deaver v. State, 24 Ala. App. 377, 135 So. 604; McDowell v. Gould, 166 Ga. 670, 144 S.E. 206; Ex parte Tollison, 73 Okla. Cr. 38, 117 P.2d 549; People v. Superior Court, 234 Ill. 186, 84 N.E. 875; Willis v. Bayles, 105 Ind. 363, 5 N.E. 8.See also Cochran v. Kansas, 316 U.S. 255; Bowen v. Johnston, 306 U.S. 19.
See Tyler v. Warden, Nebraska State Prison, No. A–02–295, 2003 WL 21398153 (Neb.App. June 17, 2003) (not designated for permanent publication). Moreover, most states with statutory requirements similar to § 29–2801 do not treat compliance with such requirements as jurisdictional. See, Nguyen v. State, 282 Ga. 483, 651 S.E.2d 681 (2007), overruled on other grounds, Brown v. Crawford, 289 Ga. 722, 715 S.E.2d 132 (2011); State ex rel. v. Adult Parole, 80 Ohio St.3d 639, 687 N.E.2d 761 (1998); People ex rel. Negron v. Herold, 33 A.D.2d 1076, 307 N.Y.S.2d 710 (1970); State ex rel. Hansen v. Utecht, 230 Minn. 579, 40 N.W.2d 441 (1950); State ex rel. Chase v. Calvird, 324 Mo. 429, 24 S.W.2d 111 (1930); In the Matter of Beard, 4 Ark. 9 (1842); In re Spates, No. 14–14–00524–CV, 2014 WL 3051311 (Tex.App. July 3, 2014) (unpublished). But see Evans v. Dist. Ct., 194 Colo. 299, 572 P.2d 811 (1977).
The respondent to whom a writ of habeas corpus is addressed can attack the petition if he desires by a motion to quash the writ. State ex rel. Chase v. Calvird, 324 Mo. 429, 24 S.W.2d 111, 114 (1930). But on a motion to quash the writ, the allegations of the petition are deemed admitted.
When the writ is issued the petition has accomplished its purpose, and ordinarily thereafter the issues are based on the return to the writ, and the transverse thereof. State ex rel. Chase v. Calvird, 324 Mo. 429, 434-5, 24 S.W.2d 111, 114. In this instance the relators here, when they were respondents below in the habeas corpus case, did file a motion to dismiss alleging voluminous facts, which was equivalent to a return challenging the court's jurisdiction.
1. A motion to quash a writ of habeas corpus serves only four purposes: (1) To set aside a writ obtained through fraud; (2) to determine whether there has been substantial compliance with the procedural requirements of the statute governing the issuance of the writ; (3) to determine if the matter is res judicata; and (4) to serve as a demurrer to test the sufficiency of the allegations of relator's petition. 25 Am.Jur., Habeas Corpus, §§ 130 and 136; State ex rel. Chase v. Calvird, 324 Mo. 429, 24 S.W.2d 111; In re Gilstrap, 171 Cal. 108, 152 P. 42, Ann. Cas. 1917A, 1086; Bleakley v. Barclay, 75 Kan. 462, 89 P. 906, 10 L.R.A.(N.S.) 230; Jensen v. Bevy, 103 Utah 220, 237-238, 134 P.2d 1081, 1089; Hardin v. Hardin, 168 Ind. 352, 81 N.E. 60. See, State ex rel. DuFault v. Utecht, 220 Minn. 431, 19 N.W.2d 706.
Its function is to advise the judge that someone probably is unlawfully or wrongfully detained or restrained of his liberty, to secure the issuance of the writ, and when that is issued the petition has 3-5 accomplished its purpose; — it is functus officio. In re Collins, 151 Cal. 340, 90 P. 827, 91 P. 397, 129 Am. St. Rep. 122, judgment affirmed Collins v. O'Neil, 214 U.S. 113, 29 S.Ct. 573, 53 L.Ed. 933; In re Williamson, 26 Pa. 9, 67 Am. Dec. 374; Addis v. Applegate, 171 Iowa 150, 154 N.W. 168, Ann. Cas. 1917E, 332; 29 C.J. p. 142; State ex rel Chase v. Calvird, 324 Mo. 429, 24 S.W.2d 111; In re Davenport, 114 Or. 650, 236 P. 758; 25 Am. Jur. p. 236. The proceeding proper is instituted by the writ of the court commanding the defendant to produce the body, and show by what authority he restrains or detains the body in whose behalf the writ is issued.
" [See also: State ex rel. St. Louis v. Caulfield, 333 Mo. 270, 273, 62 94 S.W.2d 818; State ex rel. Adler v. Ossing, 336 Mo. 386, 389, 79 S.W.2d 255; House v. Clinton County Court, 67 Mo. 522, 523.] It is apparent, therefore, that this court cannot go to the application for the writ to search out facts which should be in the return. State ex rel. Products Co. v. Pearcy, supra, 325 Mo. 335, 344; State ex rel. Chase v. Calvird, 324 Mo. 429, 437, 24 S.W.2d 111, 115; State ex rel. School Dist. v. Williams, 70 Mo. App. 238, 242; State ex rel. Packing Co. v. Stephens, 146 Mo. 662, 686, 48 S.W. 929 (majority opinion holding that undenied allegation in application cannot be considered as establishing a fact not shown in the return). Evidence and exhibits sent up in response to the writ, even though incorporated in the return and referred to in the records, may not be considered, and will be disregarded, where same are not properly a part of the record of the tribunal to whom the writ was directed.
No constitutional question was raised so as to invoke the jurisdiction of this court. State v. Becker, 41 S.W.2d 190; Kingshighway Presbyterian Church v. Sun Realty Co., 24 S.W.2d 111; 12 C.J., sec. 177, p. 760; Commercial Bank of Jamesport v. Songser, 62 S.W.2d 907; Butler v. Bd. of Education of Consolidated School Dist., No. 1, Audrain County, 16 S.W.2d 45; Woehler v. St. Louis, 114 S.W.2d 985; Daniel Henry Co., v. Bierman Sons Meddlin Rubber Co., 116 S.W.2d 127; Brookline Canning Packing Co. v. Evans, 142 S.W. 321; Stock v. Schloman, 18 S.W.2d 430. (3) This appeal does not require the construction of a revenue measure so as to give this court jurisdiction.
The lower court had jurisdiction of the parties and of the subject matter and the judgment is supported by the petition. Since there is no error on the face of the record proper, the writ of certiorari should be quashed: State ex rel. v. Patterson, 229 Mo. 368; State ex rel. v. Reynolds, 190 Mo. 588; State ex rel. v. St. Louis, 207 Mo. 366; Hannibal Railroad v. State Board, 64 Mo. 308; House v. Clinton County Court, 67 Mo. 523; State ex rel. v. Williams, 70 Mo. App. 241; Stone v. New York, 25 Wend. 134; State ex rel. v. Dowlin, 50 Mo. 134; State ex rel. v. Board, 108 Mo. 242; State ex rel. v. Cauthorn, 40 Mo. App. 96; State ex rel. v. Mayor, 57 Mo. App. 192; State ex rel. v. Edwards, 104 Mo. 125; State ex rel. v. Wells, 210 Mo. 621; State ex rel. v. Clark, 9 S.W.2d 638; School District v. Pace, 113 Mo. App. 140; State ex rel. Chase v. Calvird, 24 S.W.2d 111, 324 Mo. 429; State ex rel. v. Ossing, 79 S.W.2d 255; State ex rel. Shartel v. Skinker, 25 S.W.2d 472, 324 Mo. 955. (4) Since there is nothing here but the record proper, the sole questions that can be presented are, did the lower court have jurisdiction of the subject matter and of the parties, did the petition state a cause of action and does the petition support the judgment? Osborn v. Benbow, 38 Mo. App. 25; Oakes v. School District, 98 Mo. App. 163; Orchard v. Bank, 121 Mo. App. 338; Miller v. Falloon, 187 S.W. 839; Growney v. O'Donnell, 272 Mo. 167, 198 S.W. 863; Advance Thrasher Co. v. Speak, 167 Mo. App. 470, 151 S.W. 235; Layne v. Miners Co., 180 Mo. App. 684, 163 S.W. 569; Ryan v. Growney, 125 Mo. 474; Roden v. Helm, 192 Mo. 71; Bruner v. Johnson, 228 S.W. 92; Hearst v. Trust Co., 5 S.W.2d 3.
Second: The controlling opinion of the Supreme Court said to be violated by the appellate court's decision. State ex rel. Dunham v. Ellison, 213 S.W. 460; State ex rel. Grocery Bakery Co. v. Haide, 18 S.W.2d 478; State ex rel. v. Calvird, 24 S.W.2d 111. (2) This court in a proceeding in certiorari directed to the Court of Appeals will not determine whether or not the decision of the appellate court is in conformity with the statute if the appellate court had jurisdiction in the premises. State ex rel. Teasdale v. Smith, 101 Mo. 174; State ex rel. Tummons v. Cox, 313 Mo. 672.