State ex Rel. Chase v. Calvird

8 Citing cases

  1. Rice v. Olson

    324 U.S. 786 (1945)   Cited 348 times
    In Rice, the court reversed the conviction although the defendant did not request an attorney, where the trial court did not advise him of his right to make such a request.

    " 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.

  2. O'Neal v. State

    290 Neb. 943 (Neb. 2015)   Cited 7 times
    In O'Neal v. State, 290 Neb. 943, 951, 863 N.W.2d 162, 169 (2015), we held that "failure to attach a copy of the relevant commitment order to a petition for a writ of habeas corpus does not prevent a court from exercising jurisdiction over that petition."

    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 July 3, 2014) (unpublished).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).

  3. Wiglesworth v. Wyrick

    531 S.W.2d 713 (Mo. 1976)   Cited 52 times
    In Wiglesworth v. Wyrick, 531 S.W.2d 713 (Mo 1976), the Missouri Supreme Court considered an attack on the constitutionality of a rule relating to post-conviction motions to vacate a sentence.

    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.

  4. State ex Rel. Burtrum v. Smith

    357 Mo. 134 (Mo. 1947)   Cited 23 times
    In State ex rel. Burtrum v. Smith, 357 Mo. 134, 206 S.W.2d 558 (Mo. banc 1947) a writ of habeas corpus seeking custody of a minor child was brought in circuit court by the child's father while the mother's appeal from a divorce decree was pending in the Kansas City Court of Appeals.

    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.

  5. State ex Rel. Baker v. Utecht

    221 Minn. 145 (Minn. 1946)   Cited 36 times
    Holding that courts should exercise extreme caution when excluding the public so as not to deprive the defendant of "presence, aid, or counsel of any person whose presence might be of advantage"

    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.

  6. JENSEN v. SEVY

    103 Utah 220 (Utah 1943)   Cited 8 times

    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.

  7. State of Missouri v. Swink

    241 Mo. App. 1048 (Mo. Ct. App. 1953)   Cited 31 times
    In State ex rel. White v. Swink, 241 Mo. App. 1048, 256 S.W.2d 825 (1953), the right of the grandparents to obtain issuance of a writ of habeas corpus for the return of custody of their grandchild who prior thereto had been with them for several years, was questioned by the parents against whom the writ was issued.

    A 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, l.c. 114. The authorities hold that a petition for a writ of habeas corpus must on its face show probable cause for the issuance of the writ and when the petition fails to show grounds for the release of the infant, the court will not and should not issue the writ.

  8. Daugherty v. Nelson

    241 Mo. App. 121 (Mo. Ct. App. 1950)   Cited 24 times
    In Daugherty v. Nelson, Mo.App., 234 S.W.2d 353, 362, this court said: "It has been held that a parent cannot be deprived of the right of custody of a minor child in a guardianship proceeding without notice and an opportunity to be heard, even though the statute authorizing the removal of the parent as a natural guardian does not expressly provide for notice and a hearing, for such notice is required by the due process clause in both state and federal constitutions.

    A substantial compliance with the statute is sufficient. State ex rel. Chase v. Calvird, 24 S.W.2d 111, 114. Petition insufficient in substance may be amended in the interest of justice.