Bortles v. Jones

35 N.W.2d 679, 150 Neb. 679, 1949 Neb. LEXIS 10

• Court: Nebraska Supreme Court
• Decided: January 21, 1949
• Docket: No. 32529
• Status: Published

Opinion

Chappell, J.

Relator, hereinafter called plaintiff, filed a petition in the district court for Lancaster County against respondent, hereinafter called defendant, alleging that plaintiff was unlawfully deprived of his liberty, and praying for a writ of habeas corpus and a discharge from unlawful imprisonment, namely, solitary confinement in the Nebraska State Penitentiary.

His petition alleged in substance that on September 11, 1942, the district court for Dixon County sentenced and committed him to the Nebraska State Penitentiary for a period of 10 years from that date at hard labor, for the crime of automobile theft aggravated by habitual criminality. A certified copy of the judgment upon a plea of guilty, sentence, and order of commitment, was attached to the petition and made a part thereof. The validity thereof was not attacked or denied in any manner by plaintiff, but he alleged that without cause or lawful authority, and in spite of a provision therein that “no part of which (period of time) shall be in solitary confinement,” plaintiff was and had been for some time held in solitary confinement by defendant within the penitentiary.

The transcript herein is individually separate from, but the proceedings, judgment, and applicable rules of law were otherwise identical with, those in In re Application of Dunn, No. 32528, ante p. 669, 35 N. W. 2d 673. For that reason they will be incorporated by reference and not separately set forth or repeated in this opinion.

It is sufficient for us to say that for the reasons stated therein, and herein, the judgment of the district court should be and hereby is reversed and the action is dismissed.

Reversed and dismissed.

Paine, J., not participating.